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v £ 


TENNESSEE 



COMPILED FROM THE OPINIONS 


OF THE 


SUPREME COURT OF TENNESSEE 


PUBLISHED IN 


THE FIRST NINETY-FIVE VOLUMES OF TENNESSEE REPORTS, 
THOMPSON’S TENNESSEE CASES, TENNESSEE LEGAL 
REP9RTER AND THE OPINIONS OF CHANCELLOR 
COOPER IN TENNESSEE CHANCERY RE¬ 
PORTS, COVERING A PERIOD OF 
ONE HUNDRED YEARS FROM 


March 31, 1796 to March 20, 1896, 


BY 

0 

DOUGLAS ANDERSON, 





OF THE NASHVILLE BAR. 


» 



NASHVILLE, TENN. 

BRANDON l’RINTING COMPANY. 
1896. 











COPYRIGHT 

1896 

BY DOUGLAS ANDERSON. 




PREFACE. 


The first Constitution of Tennessee was framed by a convention which 
assembled at Knoxville January 11, 1796, and which adjourned February 6, 
1796. The second Constitution was framed by a convention which assembled at 
Nashville May 19, 1834, and which remained in session until August 30, 1834. 
This instrument was amended in 1853, and again by a mass meeting of “Union 
men” which assembled January 9, 1865, and adjourned January 26, 1865. The 
present Constitution was framed by a convention which assembled at Nashville 
January 10, 1870, and which adjourned February 23, 1870. This Constitution 
went into effect May 5, 1870. 

This volume contains a comparison of each section of the Constitution of 
1870 with the corresponding sections of the Constitutions of 1834 and 1796. 
Where there has been no change in a section, this fact appears. Where there 
has been an alteration, this is shown. All obsolete sections and clauses are also 
shown. By this plan all three of the Constitutions are given in a little more 
than the space of one, and the corresponding sections in each may be easily com¬ 
pared by the reader. 

The first judicial system for the final decision of causes went into effect April 
1, 1796. The reported opinions of this court are contained in one hundred and 
two volumes, as stated on the title page. I have examined each of these volumes 
page by page, and present in this book all that 1 think a lawyer will need to know 
about the facts of each case relating to constitutional questions, the conclusions 
of the court and the reasoning and authority upon which each opinion is based. 
This is done in the language of the judge delivering the opinion, except that in 
many instances where opinions merely reaffirm settled doctrines, or are of little 
importance, or are incompactly worded, the syllabi only are given; but in all 
cases where I think the syllabi omit any fact or reasoning important or useful to 
the lawyer, I quote from the opinion of the court. The two classes of cases are 
distinguished by using the word “held” before each of the syllabi. 

After each section of the Constitution I have arranged, according to classes, 
subjects, etc., every opinion relating to that section. Where two or more sections 
are considered jointly, so that the opinion can not be divided, their treatment is 
placed under one section, and reference made to it in the index to each of the 
other sections considered. 

Every statute considered from a constitutional standpoint is cited, and, if 
sustained, is traced down through the several Codes to the M. & V. compilation. 
For instance, if a statute was declared constitutional before 1330 and has not been 
repealed, I show where its provisions appear in Haywood & Cobb’s Digest (1831); 
the Code of 1858; T. & S. (1871), and M. & V. (1884). Statutes passed and con¬ 
sidered since 1884 are properly cited. 

The holding of the court on every question relating to any rejected provision 
of the first or second Constitutions is given briefly in the footnotes, except the 
opinions relating to the Schedule to the Amendments of 1865, in which instances 
citations only are given. Opinions that have been overruled are not quoted from, 
but are cited in opinions overruling them. Where a section of the Constitution 



IV 


PREFACE. 


is referred to in an indirect or unimportant way, reports and pages are given in 
the footnotes. In the last part of the book is given the holding of the court on 
every question relating solely to the Constitution of the United States. 

Cooper’s edition of Tennessee Reports has been used in preparing this work, 
but the paging in the original edition of Reports has been retained. Numbers of 
Reports have been substituted for names of the Reporters; but for the con¬ 
venience of the profession, I have inserted a page preceding the table of cases, 
which contains the numbers of Reports and the names of the Reporters which 
correspond with them. With each opinion is given the name of the judge 
delivering the opinion, the names of dissenting judges, if any, and the year in 
which the case was decided. 

The several indexes to the Constitution and the body of the book and the 
double-indexed table of cases, each citing the article and section of the Constitu¬ 
tion to which it relates, and the page in this volume where found, will make 
reference to any section, subject or case as convenient as possible. 

I have prepared this book, believing that such a work is needed by the legal 
profession in Tennessee; and during the course of its preparation I did not forget 
that its usefulness would depend upon the exercise of care and judgment in making 
extracts from opinions and in the general arrangement and classification of subjects. 
As this is the first book of the kind published, I have not had the benefit of 
another’s work, and, therefore, ask that the general plan of this volume be not 
too harshly criticised. At the same time, I beg permission to say that I do 
not believe an investigation of the subject-matter of the book will reveal any 
material error or omission, because the work, to quote from prefaces to many 
other law books, has been “a labor of love.” I have endeavored to make the 
book meet the requirements of the profession, and trust that it will be found to 
do so. Very truly, 

DOUGLAS ANDERSON. 

Nashville, September 19,1896. 


TOPICS DISCUSSED IN THIS BOOK. v 


TOPICS DISCUSSED IN THIS BOOK. 


Packs. 

People and Government—Inherent Power. 1-4 

The Right of Trial by Jury. 5-22 

Searches and Seizures. 23 

Judgment of Peers—Law of the Land. 24-63 

Criminal Prosecutions—Rights of the Accused. 64-92 

Once in Jeopardy. 93-110 

Presentment—Indictment—Impeachment.110-111 

Fines and Punishments. 111-112 

Rights and Remedies.113-130 

Imprisonment for Debt.131-132 

Libel.132-135 

Retrospective Laws—Laws Impairing Contracts.136-204 

Eminent Domain.205-226 

Perpetuities and Monopolies.227-229 

Keeping and Bearing Arms.230-239 

Limits and Boundaries.240-241 

Slavery and Servitude. 242 

Distinct Departments of Government.243-267 

Bills—Title—Subject—Repeal.271-295 

Bills— How Passed—When Take Effect.296-307 

Taxation by the State.309-333 

Taxation by Counties and Municipal Corporations.334-379 

Taxation of Home Manufactures.379-382 

Power to CallOut the Militia.383-384 

Reprieves and Pardons. 384-385 

Extra Sessions of the Legislature.386-387 

The Elective Franchise.389-401 

Civil Officers—Removal From Office.402-404 

Power of the Legislature to Establish Courts.405-414 

Jurisdiction of the Supreme Court.415-425 

Judges and Judicial Acts.427-433 

Attorneys General.434-437 

Compensation of Judges.438-440 

Judge’s Charge to Jury.441-448 

Power to Issue Writ of Certiorari.448-450 

Incompetency of Judges.. .451-456 

Process and Indictments.456-458 

Clerks of Courts.458-460 

Fines of Less Than Fifty Dollars. 460 

Justices and Constables.461-464 

State and County Officers.•. 465 

Vacancy in Office.465-471 

Officers a nd Vacancies....472-474 

Terms of Civil Officers.475-478 

Duels. **80 
















































VI 


TOPICS DISCUSSED IN THIS BOOK. 


Pages. 

New Counties and County Lines.481-498 

Laws in Force — Laws Abrogated.499-504 

Constitution — What It Shall Not Affect.505-506 

Divorces. 507 

Lotteries.507-509 

Usury.509-514 

Class Legislation.515-551 

Private and Local Affairs. 552-554 

Homestead.554-559 

Common Schools. 560-566 

Intermarriage of the Races.567-573 

Schedule—Officers and Offices.574-575 

Statutes of Limitations and Writs of Error..576-580 

Ordinance.580-581 

Proclamation. 582 

Members of the Convention of 1870. 582 

PART SECOND. 

Powers of Congress.591-593 

Prohibitions of State Powers. 594-595 

Appointments by the President. 596-597 

Extent of Federal Judicial Power. 598 

Records and Judicial Proceedings. 599-602 

Citizens of Different States.603-604 

Restrictions of State Powers. 607-608 

























GENERAL PRINCIPLES OF CONSTITUTIONAL LAW. 


Vll 


GENERAL PRINCIPLES OF CONSTITUTIONAL LAW. 


PAGE. 

The Voice of the People Must be Consistent with the Constitution. 2 

When Court will Interfere to Preserve Constitution.17, 40 

Danger to Constitution from Following Precedents. 21 

Constitution a Warrant of Authority Binding Upon Each Department of 

Government. 22, 158, 340 

Constitutions Only Intended to Secure Rights of Minorities.37, 48 

How Legislature is to be Kept Within Bounds of Constitution in Times of 

Political Excitement. 49 

How far Legislative Power Extends Under our State and Federal Constitu¬ 
tions.52, 244, 248, 262, 332, 341, 467, 520, 563 

The Constitution is but the Framework of Political Government. 52 

Is Based Upon Pre-existing Conditions of Laws, Rights, Habits, etc. 52 

Constitution is the Supreme Law; Legislature is its Creature... 82, 158, 245, 467 

Rules of Construction.90, 467 

Must be Construed in the Light of the Common Law. 129 

“Eternal Principles of Justice,” etc., and the Constitution .52, 139, 248 

Relation of State and Federal Constitutions on State Tax Laws. 191 

Constitution and Sovereignty of the State • .200, 201, 202, 244, 245, 256, 257, 261 
Constitution a Fundamental Law Confined to Enumeration of First Prin¬ 
ciples .244, 467 

When State and Federal Constitutions Conflict. 264 

Self-executing Clauses of Constitution Distinguished from Those that Are Not 330 
Language must be Interpreted in Light of Things Surrounding Parties Using 

Words to be Interpreted. 369 

Judicial Construction of Clause in Old Constitutions Retained in New. 420 

How'to Determine What the Constitution Intended to Establsh or Abolish. 467 


Prohibition to Exercise a Particular Power may be Implied. . 467 

The Expression of One Thing in a Constitution is the Exclusion of the Other 493 

State and Federal Constitutions—Nature of State Powers. 502 

In the Construction of Constitutions, Words are Presumed to be Used in 

their Ordinary Sense—Technical Word. 505 

When Different Parts of Constitution Conflict, Courts Must Harmonize 

Them—Manner of Doing This. 506 

How “Corporation” is to be Construed in Constitutions. 543 

Courts Must Suppose that Framers of Constitution Meant What Their Lan¬ 
guage Naturally Imports. 552 

Words Importing the Masculine Gender Include the Feminine. 557 


























vni 


GENERAL PRINCIPLES OF STATUTORY CONSTRUCTION. 


GENERAL PRINCIPLES OF STATUTORY CONSTRUCTION. 


PAGE. 


Statute May be Part Void and Part Valid.18, 45, 283, 317, 

When Part of Statute Void and Residue Dependent Upon it, etc., Both 

Void.18, 

Statute will be Construed so as to Make it Consistent with the Constitu¬ 
tion .20, 

Courts Presume that Every Statute is Constitutional.21, 

Statute Can Not Exceed Authority of Constitution.22, 

Statutes not Forbidden by Constitution may be Passed by Legislature, 26, 248, 
Legislature may Pass any Statute, not Naturally Impossible, w r hich is for 

Public Good, unless Forbidden by the Constitution.28, 138, 

Doubt as to Meaning and Constitutionality of Statute to be Solved in Favor 

of the Statute.....40, 53, 122, 158, 249, 267, 275, 

How Unconstitutionality of a Statute must be Shown.52, 248, 

Courts Can Not Annul a Statute w'hich is Free from Other Exception. 

Statute Containing Express or Implied Violation of Constitution ... .53, 185, 

Statute in Conflict with the Constitution is a Nullity. 

Construction of Statutes Now and at the Common Law. 

Expediency and Policy of Statute to be Judged of by Legislature, Not by the 

Courts.158, 248, 

General Statute may Declare What is a Nuisance, but can go no Further.... 

Legislature Can Not Direct how Statutes shall be Construed. 

How to be Construed with Reference to the Constitution.249, 257, 

Repugnancy of Statute to Spirit of Constitution. . 

In Construing Statutes, Words are Presumed to be Used in their Ordinary 

Sense—Technical Word. 

Statute may be Passed Compromising Debts, etc.. 

How “Corporation” is to be Construed in Statutes. 

Words Importing the Masculine Gender Include the Feminine. 


369 


521 


284 

216 

460 

563 


563 


284 

522 

52 

563 

69 

116 

252 

197 

249 

267 

257 

505 

522 

543 

557 























POLICE POWER. 


IX 


POLICE POWER. 


PAGE. 

Sanctions Statute to Guard and Protect General Public and Compensate 


Injured Persons.3, 47, 571 

Regulation and Control of Private Corporations.186, 197 

Abatement of Nuisances. 220 






X 


EXPLANATION TO NUMBERS OF TENNESSEE REPORTS. 


EXPLANATION TO NUMBERS OF TENNESSEE REPORTS. 


1. 1st Overton. 

2. 2d Overton. 

3 . Cook. 

4 . 3d Haywood. 

5 . 4th Haywood. 

6. 5th Haywood. 

7 . Peck. 

8. Martin & Yerger. 

9 . 1st Yerger. 

10 . 2d Yerger. 

11 . 3d Yerger. 

12 . 4th Yerger. 

13 . 5th Yerger. 

14 . 6th Yerger. 

15 . 7th Yerger. 

16 . 8th Yerger. 

17 . 9th Yerger. 

18 . 10th Yerger. 

19 . Meigs. 

20 . 1st Humphreys. 

21 . 2d Humphreys. 

22. 3d Humphreys. 

23 . 4th Humphreys. 

24 . 5th Humphreys. 

25 . 6th Humphreys. 

26 . 7th Humphreys. 

27 . 8th Humphreys. 

28 . 9th Humphreys. 

29 . 10th Humphreys. 

30 . 11th Humphreys. 

31 . 1st Swan. 

32 . 2d Swan. 

33 . 1st Sneed. 

34 . 2d Sneed. 

35 . 3d Sneed. 

36 . 4th Sneed. 

37 . 5th Sneed. 

38 . 1st Head. 

39 . 2d Head. 

40 . 3d Head. 

41 . 1st Coldwell. 

42 . 2d Coldwell. 

43 . 3d Coldwell. 

44 . 4th Coldwell. 

45 . 5t,h Coldwell. 

46 . 6th Coldwell. 

47 . 7th Coldwell. 

48 . 1st Heiskell. 

49 . 2d Heiskell. 

50 . 3d Heiskell. 


51 . 4th Heiskell. 

52 . 5th Heiskell. 

53 . 6th Heiskell. 

54 . 7th Heiskell. 

55 . 8th Heiskell. 

56 . 9th Heiskell. 

57 . 10th Heiskell. 

58 . 11th Heiskell. 

59 . 12th Heiskell. 

60 . 1st Baxter. 

61 . 2d Baxter. 

62 . 3d Baxter. 

63 . 4th Baxter. 

64 . 5th Baxter. 

65 . 6th Baxter. 

66. 7th Baxter. 

67 . 8th Baxter. 

68. 9th Baxter. 

69 . 1st Lea. 

70 . 2d Lea. 

71 . 3d Lea. 

72 . 4th Lea. 

73 . 5th Lea. 

74 . 6th Lea. 

75 . 7th Lea. 

76 . 8th Lea. 

77 . 9th Lea. 

78 . 10th Lea. 

79 . 11th Lea. 

80 . 12th Lea. 

81 . 13th Lea. 

82 . 14th Lea. 

83 . 15th Lea. 

84 . 16th Lea. 

85 . 1st Pickle. 

86 . 2d Pickle. 

87 . 3d Pickle. 

88. 4th Pickle. 

89 . 5th Pickle. 

90 . 6th Pickle. 

91 . 7th Pickle. 

92 . 8th Pickle. 

93 . 9th Pickle. 

94 . 10th Pickle. 

95 . 11th Pickle. 

T.L.R Tennessee Legal Reporter. 

T. T.C. Thompson’sTennesseeCases- 
T. C. R. Tennessee Chancery Reports. 
S. Schedule. 

O. Ordinance. 




DOUBLE INDEXED TABLE OF CASES. x i 


DOUBLE INDEXED TABLE OF CASES. 


Report. A Art. Sec. Page 

39 Adams v. Somerville. 2 29 370 

80 Aldrich v. Pickard. 6 2 421 

34 Alexandria v. Dearmon. 1 8 60 

50 Alexander v. State. 1 9 82 

87 Algood, State ex rel Whitson v. 2 17 292 

87 Algood, State ex rel Whitson v. 2 18 301 

87 Algood, State ex rel Whitson v. 2 21 302 

27 Allen, Governor v. 2 2 256 

33 Alley, Rice v. 1 8 42 

88 Alloway v. Nashville. 1 21 219 

94 Alston, State v. 2 28 329 

45 Althrop, Nashville v. 2 29 371 

89 Anderson County, Roane County v. 10 4 489 

84 Anderson, State v. 7 5 477 

46 Anderson v. Turbeville. 1 21 216 

83 Anderson v. Van Brocklen. 11 8 550 

42 Andrews, Caruthers v. 11 7 509 

50 Andrews v. Page. 1 33 242 

34 Andrews v. State. 1 10 104 

50 Andrews v. State. 1 26 234 

19 Anthony v. State. 1 9 73 

34 Armfield, Franklin v. 1 22 227 

35 Armstrong, State v. 2 2 260 

35 Armstrong, State v. 11 9 552 

41 Armstrong v. State. 1 9 83 

60 Arrington v. Cotton. 2 2 250 

91 Athens, Ruohs v. 2 17 294 

61 Austell, Harris .. 1 20 178 

95 Austin v. Harbin. 6 2 425 

67 Ayers, State v. 1 9 82 

21 Aymette v. State. 1 26 230 

B 

36 Baker, French .. 2 28 323 

46 Baker, Reynolds .. S 4 576 

81 Baker, State .. 1 9 76 

54 Baldwin, In the Matter of. S 1 574 

83 Ballentine v. Pulaski. 1 8 62 

83 Ballentine v. Pulaski. 2 2 252 

83 Ballentine v. Pulaski. 2 17 277 

83 Ballentine v. Pulaski. 2 28 333 

83 Ballentine v. Pulaski. 2 29 365 

83 Ballentine v. Pulaski. 11 8 541 

83 Ballentine v. Pulaski. 11 12 565 













































Xll 


DOUBLE INDEXED TABLE OF CASES. 


Report. 5 Art. Sec. Page 

55 Bank v. Chattanooga. 2 29 371 

10 Bank v. Cooper. 1 6 19 

10 Bank v. Cooper. 1 8 35 

10 Bank v. Cooper. 1 20 138 

19 Bank, Craighead v. 1 20 173 

35 Bank, Ferguson .. 2 2 252 

35 Bank, Ferguson .. 2 18 297 

35 Bank, Ferguson .. 2 21 302 

35 Bank, Ferguson .. 11 8 525 

60 Bank, Fogg v. 11 8 520 

41 Bank, Hannum v. 1 20 140 

83 Bank, v. Haselton. 2 17 289 

33 Bank, Hazen v. 1 20 182 

78 Bank, Hume v. 6 11 451 

72 Bank, Marr .. 1 20 186 

74 Bank v. McGowan. 1 20 189 

91 Bank, Memphis v. 11 8 537 

65 Bank v. Memphis. 1 20 190 

91 Bank and Insurance Co., Memphis v. 1 20 189 

93 Bank v. Morristown. 2 28 312 

17 Bank v. State. 1 20 186 

17 Bank v. State. 2 28 316 

37 Bank, State v. 6 2 417 

62 Bank, State v. 1 17 126 

95 Bank, State v. 1 20 191 

95 Bank, State v. 2 28 317 

95 Bank, State v. 11 8 539 

64 Bank, State and Watson v. 1 20 168 

64 Bank, State and Watson v. 11 12 565 

43 Bank, Woodfolk v. 1 20 184 

84 Banner Pub. Co. v. State. 1 19 134 

16 Barnes, Morford v. 1 6 16 

70 Barnes, Northern v. 6 2 424 

6 Barrow v. Page. 1 21 225 

45 Barry v. Lauck. 4 l 392 

9 Bashaw v. State. 1 2 2 

19 Bass v. Nashville. 11 5 507 

87 Bates v. Taylor. 2 2 259 

58 Baxter, Mabry .. 2 2 266 

20 Beazley, Columbia v. 2 29 370 

69 Beazley v. Ferris. 7 5 477 

7 Bell v. Bank. 2 2 244 

7 Bell v. Perkins. 1 20 152 

12 Bell, Tate v. 1 8 39 

79 Belleville, Willet v. 11 8 549 

79 Benton, Wilson v. 2 17 289 

2d T. L. R. Berry, Nashville v. 2 29 378 

63 Bilbrey v. Poston. H n 553 

63 Bilbrey v. Poston. O .. 581 

80 Bird, Knoxville v. 1 20 194 

40 Blackburn v. State. 6 4 428 





















































DOUBLE INDEXED TABLE OF CASES. xiii 

% 

Report. g Sec. pagg 

67 Blair, Stuart v. 10 4 496 

68 Bloomstein, State ex rel v. Sneed. 1 17 127 

68 Bloomstein, State ex rel v. Sneed. 1 20 180 

71 Blount County, Matthews v. 10 4 492 

46 Board of Education, Kesee v. 2 29 365 

62 Bouldin v. Lockhardt. 6 10 450 

62 Bouldin v. Lockhardt. 10 4 496 

69 Bouldin v. Lockhardt. 10 4 495 

56 Bolton, Memphis v. 1 21 220 

46 Boughner, Williams v. 5 5 402 

22 Bostick v. State. 1 9 73 

1 Bowen, Shaw v. 1 20 147 

37 Bowles v. State. 1 6 12 

93 Boyer v. State. 6 9 448 

84 Braden v. Stumph. 10 4 497 

21 Bradley v. Commissioners. 10 4 483 

26 Brandon v. Green. 1 20 149 

28 Brewer v. Davis. 6 13 458 

86 Brewer v. Huntingdon. 2 21 300 

2 Brice v. State. 11 1 499 

33 Bridge Co. v. Clarksville. 1 20 195 

41 Bridgenor v. Rodgers. 10 4 488 

2d Chancery. Brien ex parte. 11 11 557 

82 Brien, Woodard v. 11 8 520 

56 Brinkley v. Bedford. 7 5 475 

56 Brinkley v. Bedford. 11 1 504 

56 Brinkley v. Bedford. S 1 574 

2 Bristoe v. Evans. 1 20 158 

55 Bristol v. Dixon. 2 29 357 

42 Britton v. Moody. 6 15 461 

37 Brogan v. Savage. 6 4 427 

66 Brooks, Halliburton .. 6 11 454 

40 Brown v. Green. 2 28 312 

51 Brown v. Haywood. 2 2 264 

67 Brown, Turnpike Co. .. 2 2 258 

23 Browning v. Jones. 2 17 273 

22 Budd v. State.-. 1 8 32 

82 Building and Loan Association, Patterson .. 11 7 514 

59 Burch v. Baxter. 6 7 438 

75 Burgoyne, State .. 1 8 46 

46 Burke, Railroad .. 1 2 3 

84 Burkholtz v. State. 11 8 521 

87 Burnett v. Turner. 2 17 290 

53 Burnett, State .. 1 8 55 

32 Burns, Tucker .. 1 20 149 

28 Burrows, Gotchers .. 10 4 484 

81 Butler, State v. 1 20 190 

79 Butler, State, for use, etc., .. 1 20 181 

79 Butler, State, for use, etc., .. 2 28 314 

86 Butler, State, for use, .. 11 8 536 




















































XIV 


DOUBLE INDEXED TABLE OF CASES. 


Report. Q Art. Sec. Page 

68 Cage, Machine Co. v. 2 30 381 

69 Callicutt, State v. 1 26 239 

48 Calloway v. Sturm. 6 7 438 

47 Campbell County, Hunter v. 11 9 553 

T. T. C. Campbell County, Hunter v. 2 29 355 

76 Campbell, State ex rel Johnson v. 7 2 470 

17 Campbell v. State. 1 10 105 

21 Campbell v. Turnpike Co. 1 20 195 

21 Cannon, Hughes v. 1 20 151 

55 Cannon v. Mathes. 2 17 278 

90 Cantrell v. Railroad. 6 9 448 

42 Caruthers v. Andrews. 11 7 509 

29 Cash v. State. 6 9 446 

35 Cate v. State. 2 28 322 

62 Chad well ex parte. 11 8 526 

54 Chadwell, McLaughlin v. 2 28 317 

54 Chadwell, McLaughlin .. 2 29 358 

32 Chaffin, State v. 1 io 105 

22 Chambers v. State. 1 9 @5 

56 Chandler, Taylor .. 2 28 314 

56 Chandler, Taylor .. 2 29 356 

55 Chattanooga, Bank .. 2 29 371 

2d T. L. R. Chattanooga, Hogan v. 1 6 12 

40 Chattanooga, McCallie v. 1 20 192 

40 Chattanooga, McCallie v. 2 29 364 

92 Chattanooga v. Norman. H g 550 

75 Chattanooga v. Railroad. 2 28 319 

65 Chestnut v. McBride. 6 2 419 

19 Chunn v. Chunn. 4 20 143 

32 Clack v. White. 1 21 222 

4 Claiborne County, Evans .. 1 g 25 

47 Clark v. State. 4 47 425 

21 Clark v. Williams. 2 2 246 

97 U. S. Clarke, Keith v. 1 20 181 

33 Clarksville, Bridge Co. v. 4 20 195 

21 Claxton v. State. g g 443 

36 Clemmens v. Cato. g 45 4 g 4 

37 Cloksey, State v. 4 4 ggg 

92 Coal Co., State v. 4 4 g 434 

39 Cochrane, Egnew v. 44 4 ggg 

68 Cocke, Tillman .. 2 2 266 

90 Cole Mfg. Co. v. Falls. 4 g ^3 

90 Cole Mfg. Co. v. Falls. 2 17 285 

94 Colburn v. Railroad. 2 99 355 

56 Collins v. Railroad. 4 9 g 4 ^ 

20 Columbia v. Beazley. 2 99 370 

40 Columbia v. Guest. 2 99 374 

79 Combs v. Stumple. 4 q 4 4 ^ 

21 Commissioners, Bradley .. 4 q 4 433 

37 Conlee, Miller v. g 2 445 

12 Conner v. State. g g 442 





















































DOUBLE INDEXED TABLE OF CASES. xv 

Q Art. Sec. Page 

45 Connor, State .. 1 10 102 

33 Cook v. Spinning Co. 2 29 359 

52 Cooke v. Gooch. 10 4 489 

88 Cooke, Dye .. ll ll 559 

90 Cooke v. State. 4 1 394 

10 Cooper, Bank v. 1 6 19 

10 Cooper, Bank v. . 1 8 35 

10 Cooper, Bank v. 1 20 138 

8 Cornwell v. State. 1 9 110 

8 Cornwell v. State. 1 14 110 

60 Cotton, Arrington .. 2 2 250 

1 Cowan’s (Nathaniel) case. 1 20 194 

50 Craig v. State . 1 9 85 

19 Craighead v. Bank. 1 20 173 

39 Crawford, McNeil & Co., State v. 2 30 379 

91 Crider, Railroads v. 2 17 294 

91 Crider, Railroads v. 11 8 524 

84 Cross v. Mercer. 6 15 462 

66 Currey v. State. 1 9 70 

D 

14 Dabbs, Fisher v. 1 2 2 

14 Dabbs, Fisher v. 1 17 117 

81 Daly v. State. 11 8 541 

50 Daniel v. State. 1 9 70 

49 Davidson v. Moorman. 3 9 387 

74 Davidson County, Kuntz v. 4 1 393 

33 Davidson County, Railroad .. 2 29 335 

91 Davidson County, Turnpike Co. v. 1 20 198 

3 T. C. R. Davidson County, Turnpike Co. v. 1 20 196 

28 Davis, Brewer v. 6 13 458 

48 Day v. McGinnis. 2 20 304 

65 Davis v. State. 1 9 70 

71 Davis v. State. 2 2 249 

27 Deaderick, Hope vs. 2 28 332 

41 Deaderick v. Washington County. 1 8 45 

69 Dean, Lipscomb .. 2 29 367 

34 Dearmon, Alexandria .. 1 8 60 

87 De Moville v. Davidson County. 11 8 521 

46 Denton, State .. 1 9 89 

2 Dillon, Jackson .. 1 20 150 

55 Dixon, Bristol .. 2 29 357 

80 Dodds v. Duncan. 6 2 419 

33 Dorris, Greenfield .. 1 20 176 

88 Dubose, State ex rel .. 9 3 480 

15 Duggan v. McKinney. 6 10 449 

95 Dugger v. Insurance Co. 1 8 44 

95 Dugger v. Insurance Co. 1 20 154 

16 Dula v. State. 1 9 86 

89 Durham v. State. 1 8 34 


















































XVI 


DOUBLE INDEXED TABLE OF CASES. 


Report. Q Art. Sec. Page 

75 Dwyer, Kelley v.... 2 28 328 

88 Dye v. Cook.. 11 11 559 

19 Dyer v. State.. 2 17 298 

E 

63 Easley, McClain .. 1 20 176 

76 Eason, Holmes v. 6 11 452 

65 Eason v. State. 1 9 78 

23 Edwards, State v. 1 20 178 

39 Egnew v. Cochrane. 11 1 500 

48 Either, Sporrer v.*.. 1 2 8 

67 Ellis v. .Railroad. 2 28 319 

48 Ellis v. Spurgin. 6 9 447 

92 Ellis v. State. 1 9 81 

92 Ellis v. State. 6 1 409 

92 Ellis v. State. 10 4 498 

2 Evans, Bristoe v. 1 20 158 

4 Evans v. Claiborne County. 1 8 25 

66 Evans v. State. 3 6 385 

55 Ewin, Jenkins v. 2 28 324 

F 

90 Falls, Cole Mfg. Co. v. 1 8 58 

90 Falls, Cole Mfg. Co. v. 2 17 285 

75 Fargason, Lauderdale Co. v. 2 29 350 

95 U. S. Farrington, Memphis v. 1 20 190 

24 Farquhar v. Toney. 6 9 446 

35 Ferguson v. Bank. 2 2 252 

35 Ferguson v. Bank. 2 18 297 

35 Ferguson v. Bank. 2 21' 302 

35 Ferguson v. Bank.. 11 8 525 

69 Ferris, Beazley v. 7 5 477 

8 Fields v. State. 1 8 29 

71 Fickle, State ex rel Morrell v. 2 2 . 267 

71 Fickle, State ex rel Morrell v. 2 17 288 

145 U. S. Ficklen v. Taxing District. 2 28 331 

40 Finney v. State... 1 9 81 

14 Fisher v. Dabbs. 1 2 2 

14 Fisher v. Dabbs. 1 17 117 

68 Fisher, Memphis .. 11 8 545 

61 Fite, Gold v. 7 4 472 

61 Fite, Gold v.T. g 1 574 

26 Fleming, State v. 2 2 248 

60 Fogg v. Bank. n 8 520 

39 Fogg v. Williams. 1 31 240 

48 Ford v. Farmer. IQ 4 493 

45 Fowler, Littlejohn .. 1 g 17 

65 France v. State. g 44 4 gg 

10 Francis, Lowry .. 4 20 164 

34 Franklin v. Armfield. 4 2 2 227 

25 Franklin v. Maberry. 2 29 373 

















































DOUBLE INDEXED TABLE OF CASES. xv ii 

Report. p Art. Page 

80 Franklin County v. Railroad. 2 28 320 

73 Franklin County, Railroad v. 2 29 354 

20 Franklin, Robinson .. 2 29 369 

87 Frazier v. Railroad. 2 17 293 

43 Freight Co. v. Memphis. 6 2 420 

44 Freight Co. v. Memphis. ] 21 214 

36 French v. Baker. 2 28 323 

55 Friedman v. Mathes. 2 28 330 

54 Frierson v. Presbyterian Church. 11 1 502 

76 Fulgum v. Nashville. 2 29 358 

76 Fulgum, State ex rel v Nashville. 2 29 358 

52 Fuller v. McFarland. 11 1 502 

75 U. S. Furman v. Nichol. 1 20 180 

G 

70 Gaines, State ex rel Halsey v. 6 1 406 

69 Gaines, State ex rel Hamby v. 2 17 285 

72 Gaines v. Horrigan. 2 18 298 

72 Gaines v. Horrigan. 6 7 439 

3d T. C. R. Gaines, Railroad v. 11 8 534 

76 Gaines, State ex rel v. Whitworth. 1 20 191 

76 Gaines, State ex rel v. Whitworth. 2 17 283 

68 Gaines, Wilson v. 11 8 532 

3d T. C. R. Gaines, Pullman Co. v. 2 28 328 

78 Gallatin, Moseley v. 1 18 131 

84 Gannaway, State, for use, v. 6 2 421 

84 Gannaway, State, for use, v. .. 6 2 421 

26 Garnett v. Stockton. 1 20 149 

70 Garrison v. Hollins. 1 6 18 

81 Garvin v. State. 2 17 284 

109 U. S. Gas Co. v. Taxing District. 1 20 190 

50 Gibbs v. State. 1 9 77 

2 Gibson, Thompson .. 6 1 405 

48 Girdner v. Stephens. S 4 578 

68 Glasgow v. State. 6 11 454 

54 Glenn, State ex rel Smiley .. 6 4 429 

10 Goddard v. State.*. 1 8 31 

61 Gold v. Fite. 7 4 472 

61 Gold v. Fite. S 1 574 

52 Gooch, Cooke .. 10 4 489 

11 Goodlett, Harding .. 1 21 206 

38 Goodman v. Mining Co. 1 20 168 

19 Goodman v. State. 1 9 72 

1st T. L. R. Gossett v. State. 2 17 283 

28 Gotchers v. Burrows. 10 4 484 

27 Governor v. Allen. 2 2 256 

24 Governor v. McEwen. 11 12 560 

24 Governor v. Porter. 2 2 246 

85 Gray v. Knoxville. 1 21 221 

26 Green, Brandon .. 1 20 149 

40 Green, Brown .. 2 28 312 



















































xviii DOUBLE INDEXED TABLE OF CASES. 


Report. Q Art. Sec. Page 

83 Greene v. State.. 3 5 383 

33 Greenfield v. Dorris. I 20 176 

66 Greenfield v. State. 6 5 437 

3d T. L. R. Greenwood v. State. 1 10 107 

88 Griffin ex parte. 2 17 285 

37 Grundy Co., Marion Co. v. 10 4 490 

94 Grundy Co. v. Railroad. 6 11 456 

40 Guest, Columbia v. 2 29 371 

H 

5 Hadley, Perkins v. 6 10 448 

43 Hall, State, for use, etc., v. 6 2 421 

65 Hall, State ex rel Kain v. 6 2 424 

42 Hale, White v. 1 22 229 

66 Halliburton v. Brooks. 6 11 454 

59 Halsey, Memphis v. 6 2 419 

70 Halsey, State ex rel v. Gaines. 6 1 406 

102d U. S. Hamblen County, Railroad v. 11 8 532 

69 Hamby, State ex rel v. Gaines. 2 17 285 

89 Hamilton County, James County v. 10 4 493 

83 Hancock County v. Hawkins County. 10 4 489 

41 Hannum v. Bank. 1 20 140 

65 Hannum v. Mclnturff. 11 11 555 

95 Harbin, Austin v. 6 2 425 

11 Harding v. Goodlett. 1 21 206 

61 Harris v. Austell. 1 20 178 

56 Harris, Staunton v. 2 28 310 

75 Harris v. State. 1 19 132 

7 Harris, Tipton v. 1 8 27 

54 Harrison v. Henderson. 1 17 124 

54 Harrison v. Willis. 1 17 120 

83 Haselton, Bank v. 2 17 289 

80 Hatcher v. State. 11 8 549 

22 Haynes v. State. 6 5 435 

70 Hayes, State v. 1 10 103 

51 Haywood, Brown v. 2 2 264 

87 Haywood County, Nelson v. * . 2 18 306 

91 Haywood County, Nelson v. 2 29 354 

33 Hazen v. Bank. 1 20 183 

94 Hefley, Strain v. 6 15 454 

87 Heiskell v. The Lodge. 11 8 550 

83 Henderson, Pickard v. 6 11 455 

68 Hicks, Railroad .. 11 8 529 

3 Hickman v. Smith. 2 17 272 

73 Hill v. State. 2 18 304 

92 Hinton, M. E. Church .. 2 28 312 

63 Hobbs, Jones v. 1 20 179 

19 Hobson, Montgomery v. 1 20 151 

38 Hockaday v. Wilson. 2 17 273 

55 Hocker, Johnson v... H g 5^9 

23 Hodges, Ivey v. 6 9 445 



















































DOUBLE INDEXED TABLE OF CASES. 


xix 


Report. 

2d T. L. R. Hogan v. Chattanooga. 

18 Holliday, McKinley v. 

70 Hollins, Garrison .. 

76 Holmes v. Eason. 

23 Hooper, AVoodfin v. 

27 Hope v. Deaderick. 

10 Hope v. Johnson. 

78 Hopkins v. State. 

41 Horne v. Railroad. 

69 Hornberger v. Hornberger. 

72 Horrigan, Gaines v. 

72 Horrigan, Gaines v. 

59 Hotel Co., McKinney v. 

30 Howard v. Horner. 

53 Hubbs, Mynatt v. 

43 Hudson v. State. 

21 Hughes v. Cannon. 

78 Hume v. Bank. 

63 Humphreys County v. Houston County 

T. T. C. Hunter v. Campbell County. 

47 Hunter v. Campbell County. 

52 Hundhausen v. Insurance Co. 

52 Hundhausen v. Insurance Co. 

86 Huntingdon, Brewer v. 

6 Huntsman v. Randolph. 

21 Hurst, Powers v. 

70 Hurt v. Hurt. 

87 Hyman v. State. 


I 

95 Insurance Co., Dugger v. 

95 Insurance Co., Dugger v. 

52 Insurance Co., Hundhausen Co. v 
52 Insurance Co., Hundhausen Co. v 

65 Insurance Co., Memphis v. 

92 Insurance Co., Miller v. 

95 Insurance Co., State v. 

72 Insurance Co. v. Taxing District.. 

82 Iron Co., Jones v. 

44 Ivie, Johnson v. 

23 Ivey v. Hodges. 


2 Jackson v. Dillon. 

71 Jackson v. Nimmo. 

89 James County v. Hamilton County 

55 Jenkins v. Ewin. 

55 Johnson v. Hocker. 

10 Johnson, Hope v. 

44 Johnson v. Ivie. 


Art. 

Sec. 

Page 

1 

6 

12 

1 

20 

162 

1 

6 

18 

6 

11 

452 

1 

20 

180 

2 

28 

332 

1 

20 

143 

1 

9 

68 

1 

20 

140 

1 

22 

229 

2 

18 

298 

6 

7 

440 

11 

7 

511 

10 

4 

491 

S 

4 

579 

1 

9 

88 

1 

20 

151 

6 

11 

451 

10 

4 

489 

2 

29 

355 

11 

9 

553 

6 

2 

420 

6 

11 

453 

2 

21 

300 

1 

20 

151 

7 

2 

465 

11 

4 

507 

2 

17 

289 


1 

8 

44 

1 

20 

154 

6 

2 

420 

6 

11 

453 

1 

20 

193 

11 

8 

526 

11 

8 

540 

2 

17 

274 

6 

9 

447 

2 

2 

263 

6 

9 

445 


1 

20 

150 

6 

1 

409 

10 

4 

493 

2 

28 

324 

11 

8 

519 

1 

20 

143 

2 

2 

263 
















































XX 


DOUBLE INDEXED TABLE OF CASES. 


Report. J Art. Sec. Page 

21 Johnson, Sheppard v. 1 8 50 

10 Johnston v. State. 1 9 71 

71 Johnson v. State. 2 20 304 

76 Johnson, State ex rel v. Campbell... 7 2 470 

87 Johnson, State ex rel v. McClellan. 3 6 385 

44 Johnson v. Taylor. 2 2 263 

23 Jones, Browning .. 2 17 273 

63 Jones v. Hobbs. 1 20 179 

82 Jones v. Iron Co. 6 9 447 

2 Jones v. Jones. 1 20 139 

8 Jones v. Kearns. 1 17 116 

18 Jones v. Perry. 1 8 49 

18 Jones v. Perry. 2 2 244 

K 

65 Kaine, State ex rel v. Hall. 6 2 424 

8 Kearns, Jones v. 1 17 116 

97 U. S. Keith v. Clarke. 1 20 181 

75 Kelly v. Dwyer. 2 28 326 

29 Kendrick v. State. 1 9 75 

60 Kennedy v. Stacey. 11 11 554 

10 Kennedy, Wally v. 1 8 47 

46 Kesee v. Board of Education. 2 29 365 

35 Keys v. Mason. 6 15 461 

87 King v. State. 2 2 267 

15 Kirby v. State. 1 6 5 

41 Kirk v. State. 1 9 87 

19 Kirkpatrick v. State. 1 6 12 

72 Knight, State ex rel v. McCann. 2 17 282 

68 Knox v. State. 1 8 34 

89 Knox County, Tuttle v. 1 21 224 

90 Knox County, Union County v. 10 4 490 

85 Knoxville, Gray .. 1 21 221 

80 Knoxville v. Lewis. 2 17 277 

40 Knoxville, Smith .. 2 29 372 

65 Knoxville, University .. 2 29 364 

43 *Koger, Miller .. 6 2 421 

74 Kuntz v. Davidson County. 4 i 393 

86 Kurth v. State. 2 30 381 

L 

94 Land Co., Shields v. 4 20 179 

68 Lasater, State v. 4 43 412 

68 Lasater, State v. 2 17 279 

45 Lauck, Barry .. 4 4 392 

75 Lauderdale County v. Fargason. 2 29 350 

55 Lawyers’ Tax Cases. 2 28 227 

78 Lea v. State. 2 17 288 


1 See State v. Hall. 















































DOUBLE INDEXED TABLE OF CASE*. xx i 

Report. |_ Art. Sec. Page 

86 Lenoard, State v. 6 4 432 

80 Lewis, Knoxville v. 2 17 277 

31 Lewis County, Maury County v. 10 4 485 

17 Lewis, Waters v. 6 2 415 

61 Lewis v. Woodfolk. 1 20 155 

50 Ligan v. State. 1 16 111 

50 Ligan v. State. 6 11 453 

80 Linck, Nashville v. 2 29 373 

50 Link v. State. 1 10 107 

69 Lipscomb v. Dean. 2 29 367 

65 Little v. State. 6 9 447 

45 Littlejohn v. Fowler. 1 6 17 

62 Lockhardt, Bouldin v. 6 10 449 

62 Lockhardt, Bouldin v. 10 4 495 

69 Lockhardt, Bouldin v. 10 4 496 

87 Lodge, The, Heiskell v. 11 8 550 

50 Logan v. State. 2 20 304 

50 <Lonas v. State. 11 14 567 

75 Long v. Taxing District... . 1 7 23 

1 Love v. McCool. 1 6 14 

40 Love, Railroad v. 1 21 220 

10 Lowry v. Francis. 1 20 164 

70 Luehrman v. Taxing District. 2 17 280 

70 Luehrman v. Taxing District. 2 29 355 

70 Luehrman v. Taxing District. 7 4 473 

70 Luehrman v. Taxing District. 11 8 546 

65 Lyle v. Longley. 6 12 456 

76 Lynn v. Polk. 1 17 128 

76 Lynn v. Polk. 1 20 199 

76 Lynn v. Polk. 2 2 254 

M 

25 Maberry, Franklin v. 2 29 373 

58 Mabry v. Baxter. 2 2 266 

20 Mabry v. Tarver. 2 28 321 

68 Machine Co. v. Cage. 2 30 381 

61 Macon and Smith Counties v. Trousdale Co. 10 4 488 

18 Mali ala v. State. 1 10 99 

89 Mahoney, Railroad v. 1 8 43 

36 Major v. State. 1 9 76 

36 Major v. State. 1 10 105 

92 Maloney, State ex rel Rambo v. 7 5 477 

37 Marion Co. v. Grundy Co. 10 4 490 

72 Marr v. Bank. 1 20 186 

1st T. L. R. Martin, State . 1 20 198 

35 Mason, Keys .. 6 15 461 

55 Mathes, Cannon .. 2 17 278 

55 Mathes, Friedman .. 2 28 330 

71 Matthews v. Blount Co. 10 4 492 

31 Maury County v. Lewis County. 10 4 485 

27 Maury County, Turnpike Co. v. 1 20 195 



















































XXII 


DOUBLE INDEXED TABLE OF CASES. 


Report |^| Art. Sec. Page 

50 Mayes v. State. 1 9 82 

92 M. E. Church v. Hinton. 2 28 312 

91 Memphis v. Bank. 11 8 537 

65 Memphis, Bank v. 1 20 190 

91 Memphis v. Bank and Insurance Co. 1 20 189 

56 Memphis v. Bolton. 1 21 220 

95 U. S. Memphis v. Farrington. 1 20 190 

68 Memphis v. Fisher. 11 8 545 

43 Memphis, Freight Co. v. 6 2 420 

44 Memphis, Freight Co. v. 1 21 214 

59 Memphis v. Halsey. 6 2 419 

65 Memphis v. Insurance Co. 1 20 193 

74 Memphis, O’Connor v. 1 20 193 

44 Memphis, Railroad v. 11 8 544 

46 Memphis, Trigally v. 1 6 5 

46 Memphis, Trigally v. 1 8 61 

52 Memphis v. Water Co. 1 20 185 

52 Memphis v. Water Co. 1 22 229 

52 Memphis v. Water Co. 2 17 273 

52 Memphis v. Water Co. 11 8 540 

84 Mercer, Cross v. 6 15 462 

68 Merchants v. Memphis. 2 28 331 

45 Merritt v. Nashville. 1 21 225 

37 Miller v. Conlee. 6 2 415 

92 Miller v. Insurance Co. 11 8 526 

43 filler v. Roger. 6 2 421 

50 Mikels v. State. 1 10 105 

38 Mining Co., Goodman v. 1 20 168 

22 Mitchell v. Turnpike Co. 3 9 386 

19 Montgomery v. Hobson. 1 20 151 

42 Moody, Britton v. 6 15 461 

37 Moore v. State. 11 8 516 

50 Moore v. State. 1 10 104 

49 Moorman, Davidson .. 3 9 387 

16 Morford v. Barnes. 1 6 16 

39 Morgan v. Reed. 11 8 518 

35 Morgan v. State. 1 10 102 

71 Morrell, State ex rel v. Fickle. 2 2 267 

71 Morrell, State ex rel v. Fickle. 2 17 288 

89 Morris, Stratton v. 1 8 51 

93 Morristown, Bank v. 2 28 312 

82 Morrow v. State. 1 io 106 

87 Morrow, Street Railroad v. 1 20 154 

87 Morrow, Street Railroad .. 2 28 321 

87 Morrow, Street Railroad v. 2 28 331 

78 Moseley v. Gallatin. 1 ig 131 

68 Moses v. State. 1 9 71 

47 Murphy v. State. 1 10 103 

77 Murphy v. State. 2 17 282 


1 See State v. Hall. 




















































DOUBLE INDEXED TABLE OF CASES. xx jjj 

M Art. Sec. Page 

53 Mynatt v. Hubbs. S 4 579 

55 Myers v. Park. 1 8 55 

55 Myers v. Park. 2 28 311 

85 Myers, State v. 6 5 437 

Me 

05 McBride, Chestnut v. 0 2 419 

40 McCallie v. Chattanooga. 1 20 192 

40 McCallie v. Chattanooga. 2 29 364 

72 McCann, State ex rel Knight v. 2 17 282 

6 McCarroll v. Weeks. 1 8 54 

63 McClain v. Easley. 1 20 176 

87 McClellan, State ex rel Johnson v. 3 6 385 

71 McConnell, State ex rel Williams v. 2 17 287 

71 McConnell, State ex rel Williams v. 2 18 298 

1 McCool, Love v. 1 6 14 

59 McDonald, Railroad v. 1 20 185 

24 McEwen, Governor v. 11 12 560 

52 McFarland, Fuller v. 11 1 502 

70 McGhee v. State. 2 17 286 

48 McGinnis, Day v. 2 20 304 

28 McGinnis v. State. 1 6 7 

74 McGowan, Bank v. 1 20 189 

95 McGuire v. Railroad. 1 6 19 

65 MclnturfF, Hannum v. 11 11 555 

76 McKee, State ex rel Puckett v. 6 7 440 

90 McKenzie, Powers v. 2 17 285 

18 McKinley v. Holliday. 1 20 162 

15 McKinney, Duggan v. 6 10 449 

59 McKinney v. Hotel Co. 11 7 511 

54 McLaughlin v. Chad well. 2 28 317 

54 McLaughlin v. Chadwell. 2 29 358 

92 McLendon v. State. 6 12 557 

T. T. C. McPherson, Trim v. S 4 576 

N 

88 Nashville, Alloway v. 1 21 219 

45 Nashville v. Althrop. 2 29 371 

19 Nashville, Bass v. 11 5 507 

2d T. L. R. Nashville v. Berry. 2 29 378 

76 Nashville, Fulgum v. 2 29 358 

80 Nashville r. Linck. 2 29 373 

45 Nashville, Merritt v. 1 21 225 

30 Nashville, Pearl .. 6 12 456 

76 Nashville, Fulgum v. 2 29 358 

45 Nashville v. Thomas. 2 29 358 

37 Nashville v. Towns. 2 29 347 

31 Nashville, Washington v. 2 29 376 

84 Nashville v. Ward. 2 28 311 

32 Nashville, Whyte .. 2 29 377 

89 Nashville, Williams v. 1 8 63 

















































XXIV 


DOUBLE INDEXED TABLE OF CASES. 


Report. N Art. Sec. Page 

89 Nashville, Williams v. 2 2 255 

89 Nashville, Williams v. 2 19 306 

89 Nashville, Williams v. 11 8 549 

63 Neely v. State. 1 6 17 

63 Neely v. State. 1 21 205 

72 Neely v. State. 11 8 536 

70 Neil v. State. 6 11 455 

87 Nelson v. Haywood County. 2 18 306 

91 Nelson v. Haywood County. 2 29 354 

37 Newman v. Scott County. 2 29 348 

75 U. S. Nichol, Furman v. 1 20 180 

28 Nichol v. Nashville. 2 29 360 

71 Nimmo, Jackson v. 6 1 409 

90 Nine Justices, State v. 6 15 463 

46 Nokes v. State. 1 9 69 

92 Norman, Chattanooga v. 11 8 550 

70 Northern v. Barnes and State and Williams. 6 2 424 

10 Norwood, Williams v. 6 9 441 

o 

74 O’Connor v. Memphis. 1 20 193 

43 Odum, Turner v. 2 18 303 

13 Officer v. Young. 1 8 41 

95 Old, State v. 4 1 396 

18 Orr, Wood v. 1 20 149 

P 

50 Page, Andrews v. 1 33 242 

6 Page, Barrow v..... 1 21 225 

50 Page v. State. 1 26 238 

40 Parchmen, State .. 7 l 465 

55 Park, Myers v. 1 8 56 

55 Park, Myers v. 2 28 311 

59 Parks v. Parks. 11 8 520 

81 Parker v. Railroad. 1 21 219 

74 Parker v. Savage. 11 2 505 

82 Patterson v. Building and Loan Association. 11 ^ 514 

30 Pearl v. Nashville. 6 12 456 

7 Perkins, Bell .. 1 20 152 

5 Perkins v. Hadley. 6 10 448 

1st T. L. R. Perkins v. Scales. 2 2 252 

61 Perkins v. Watson. H 7 511 

18 Perry, Jones v. 1 g 49 

18 Perry, Jones v. 2 2 244 

72 Petty v. State. 1 9 7 g 

80 Pickard, Aldrich v. 6 2 421 

83 Pickard v. Henderson. 0 41 455 

81 Pickle, Willaford v. 2 17 277 

34 Pippin v. State. 6 5 435 

76 Poe, State v. 1 9 gg 

85 Poe v. State. 2 17 278 

















































DOUBLE INDEXED TABLE OF CASES. 


xxv 


Report. p Art sec. Page 

76 Polk, Lynn v. 1 17 128 

76 Polk, Lynn v. 1 20 199 

76 Polk, Lynn v. 2 2 254 

72 Pool, State v. 1 10 103 

50 Pope v. Phifer. 2 2 263 

50 Pope v. Phifer. 7 2 466 

24 Porter, Governor v.*. 2 2 246 

82 Porter, Theilan v. 1 21 220 

63 Poston, Bilbrey v. 11 11 558 

63 Poston, Bilbrey v. O 4 581 

79 Pounds, Railroad v. 1 20 143 

21 Powers v. Hurst. 7 2 465 

90 Powers v. McKenzie. 2 17 285 

87 Prater v. Prater. 11 11 558 

54 Presbyterian Church, Frierson v. 11 1 502 

34 Pritchett v. State. 1 10 104 

76 Puckett, State ex rel v. McKee. 6 7 440 

83 Pulaski, Ballentine v. 1 8 62 

83 Pulaski, Ballentine v. 2 2 252 

83 Pulaski, Ballentine v. 2 17 277 

83 Pulaski, Ballentine v. 2 28 333 

83 Pulaski, Ballentine v. 2 29 365 

83 Pulaski, Ballentine v. 11 8 541 

83 Pulaski, Ballentine v. 11 12 565 

35 T. C. R. Pullman Co. v. Gaines. 2 28 328 

Q 

30 Quartermus, State v. 1 9 70 

27 Quinby v. Turnpike. 1 8 59 

R 

86 Ragio v. State. 2 17 284 

86 Ragio v. State. 11 8 521 

46 Railroad v. Burke. 12 3 

90 Railroad, Cantrell v. 6 9 448 

75 Railroad, Chattanooga v. 2 28 319 

94 Railroad, Colburn .. 2 29 355 

56 Railroad, Collins .. 1 20 150 

91 Railroads v. Crider. 2 17 294 

91 Railroads v. Crider. 11 8 524 

33 Railroad v. Davidson County. 2 29 335 

67 Railroad, Ellis v. 2 28 319 

80 Railroad, Franklin County v. 2 28 320 

73 Railroad v. Franklin County. 2 29 354 

87 Railroad, Frazier .. 2 17 293 

3d T. C. R. Railroad v. Gaines. 11 8 534 

94 Railroad, Grundy County v. 6 11 456 

102d U. S. Railroad v. Hamblen County. 11 8 532 

68 Railroad v. Hicks. 11 8 529 

41 Railroad, Horne .. 1 20 140 

40 Railroad v. Love. 1 21 220 

















































XXVI 


DOUBLE INDEXED TABLE OF CASES. 


Report. p Art. Sec. Page 

89 Railroad v. Mahoney ... 1 8 43 

44 Railroad v. Memphis. 11 8 544 

59 Railroad v. McDonald. 1 20 185 

95 Railroad, McGuire v. 1 6 19 

81 Railroad, Parker v. 1 21 219 

79 Railroad v. Pounds. 1 20 143 

59 Railroad, Simms v. 1 21 219 

80 Railroad, State .. 11 8 534 

82 Railroad, State .. 1 20 154 

59 Railroad v. Stovall. 1 21 219 

46 Railroad, Taylor v. 1 21 226 

54 Railroad, White .. 1 21 217 

89 Railroad v. Wilson County. 6 1 414 

60 Railroad, Winston v. 2 29 349 

32 Railroad, Woodfolk v. 1 21 208 

134 1 U. S. Railroad v. Woodson... 1 8 43 

92 Rambo, State ex rel v. Maloney. 7 5 477 

6 Randolph, Huntsman v. 1 20 151 

44 Rankin, State v. 1 10 107 

91 Ransome v. State. 2 17 294 

69 Rauscher, State v. 11 8 548 

39 Reed, Morgan v. 11 8 518 

3 Register, Williams v. 1 17 125 

47 Reeves v. State. 1 9 76 

46 Reynolds v. Baker. S 4 576 

4 Reynolds, State v. 1 10 93 

33 Rice v. Alley. 1 8 42 

50 Rice v. State. 6 12 457 

91 Richards v. State. 1 9 69 

16 Richardson v. Wilson. 1 20 179 

46 Ridley v. Sherbrook. 4 1 390 

66 Rivers, Tatum v. 7 5 476 

89 Roane County v. Anderson County. 10 4 489 

120 U. S. Robbins v. Taxing District. 2 29 372 

20 Robinson v. Franklin. 2 29 369 

41 Rodgers, Bridgenor v. 10 4 488 

53 Rose, Webster .. 1 20 173 

92 Runnels, State v. 2 17 294 

91 Ruohs v. Athens... 2 17 294 

s 

37 Savage, Brogan .. 6 4 427 

74 Savage, Parker v. 11 2 505 

1st T. L. R. Scales, Perkins v. 2 2 250 

50 Schleier, State v. 2 28 226 

26 School Commissioners v. State. i 20 178 

55 Schools, Board of, Waterhouse v. 2 29 364 

37 Scott County, Newman v. 2 29 348 

7 Sevier v. Washington County. 1 8 26 


See Railroad v. Mahoney. 

















































DOUBLE INDEXED TABLE OF CASES. xxvii 

fteport* 5 Art. Sec - Pa 8 e 

1 Shaw v. Bowen. 1 20 147 

21 Sheppard v. Johnson. 1 8 51 

46 Sherbrook, Ridley v. 4 1 390 

94 Shields v. Land Co. 1 20 179 

3 Shipp, Townsend v. 1 20 155 

59 Simms v. Railroad. 1 21 219 

40 Sizemore v. State. 1 9 69 

54 Smiley, State ex rel v. Glenn. 6 4 429 

3 Smith v. Hickman. 2 17 272 

40 Smith v. Knoxville. 2 29 372 

61 Smith and Macon Counties v. Trousdale County. 10 4 488 

68 Sneed, State ex rel Bloomstien v. 1 17 127 

68 Sneed, State ex rel Bloomstien v. 1 20 180 

14 Solomons, State v. 1 10 93 

39 Somerville, Adams v. 2 29 370 

66 Speck v. State. 1 9 82 

33 Spinning Co., Cook v. 2 29 359 

48 Sporrer v. Eiffler. 1 2 3 

48 Spurgin, Ellis v. 6 9 447 

60 Stacey, Kennedy v. 11 11 554 

89 Staples v. State. 1 9 92 

46 Staten, State v. 1 8 42 

46 Staten, State v. 2 2 257 

46 Staten, State v. 4 1 392 

56 Staunton v. Harris. 2 28 310 

48 Stephens, Girdner v. S 4 578 

26 Stockton, Garnett v. 1 20 149 

59 Stovall, Railroad v. 1 21 218 

94 Strain v. Hefley. 6 15 464 

89 Stratton v. Morris. 1 8 51 

87 Street Railroad v. Morrow.*- 1 20 154 

87 Street Railroad v. Morrow. 2 28 321 

87 Street Railroad v. Morrow. 2 28 331 

67 Stuart v. Blair. 10 4 496 

84 Stumph, Braden .. 10 4 497 

79 Stumple, Combs .. 10 4 497 

48 Sturm, Calloway .. 6 7 438 

68 Sumner County, Telegraph Co. v. 2 28 321 

T 

20 Tarver, Mabry .. 2 28 321 

12 Tate v. Bell. 1 8 39 

66 Tatum v. Rivers. 7 5 476 

145 U. S. Taxing District, Ficklen .. 2 28 331 

109 U. S. Taxing District, Gas Co. v. 1 20 190 

72 Taxing District, Insurance Co. .. 2 17 274 

75 Taxing District, Long .. 1 7 23 

70 Taxing District, Luehrman .. 2 17 280 

70 Taxing District, Luehrman .. 2 29 355 

70 Taxing District, Luehrman .. 7 4 473 

70 Taxing District, Luehrman .. 11 8 546 



















































xxviii DOUBLE INDEXED TABLE OF CASES. 

Report. y Art. Sec. Page 

120 U. S. Taxing District, Robbins v. 2 29 372 

84 Taxing District, Williams .. 1 8 59 

84 Taxing District, Williams v. 1 17 129 

87 Taylor, Bates v. 2 2 259 

56 Taylor v. Chandler. 2 28 314 

56 Taylor v. Chandler. 2 29 356 

44 Taylor, Johnson v. 2 2 263 

46 Taylor v. Railroad. 1 21 226 

68 Telegraph Co. v. Sumner County. 2 28 321 

82 Theilan v. Porter. 1 21 220 

45 Thomas, Nashville v. 2 29 358 

42 Thomas, Ward v. 6 2 418 

2 Thompson v. Gibson. 6 1 405 

50 Thurston, State v. 1 10 106 

68 Tillman v. Cocke. 2 2 267 

7 Tipton v. Harris. 1 8 27 

24 Toney, Farquahr v. 6 9 446 

37 Towns, Nashville v. 2 29 347 

7 Townsend v. Townsend. 1 8 45 

7 Townsend v. Townsend. 1 17 113 

7 Townsend v. Townsend. 1 20 147 

7 Townsend v. Townsend. 1 20 169 

3 Townsend v. Shipp. 1 20 155 

46 Trigally v. Memphis. 1 6 5 

46 Trigally v. Memphis. 1 8 61 

T. T. C. Trim v. McPherson. S 4 576 

61 Trousdale County, Macon and Smith Counties v. 10 4 488 

81 Truss v. State. 2 17 289 

32 Tucker v. Burns. 1 20 149 

46 Turbeville, Anderson v. 1 21 216 

87 Turner, Burnett v. 2 17 290 

43 Turner v. Odum. 2 18 304 

89 Turner v. State. 6 5 436 

8 Turk, State v. 2 2 244 

67 Turnpike Co. v. Brown. 2 2 258 

21 Turnpike Co., Campbell v. 1 20 195 

92 Turnpike Cases. 2 28 329 

91 Turnpike Co. v. Davidson County. 1 20 198 

3d T. C. R. Turnpike Co. v. Davidson County. ] 20 196 

27 Turnpike Co. v. Maury County. 1 20 195 

22 Turnpike Co., Mitchell v. 3 9 386 

27 Turnpike Co., Quinby v. 1 8 59 

84 Turnpike Co. v. State. 1 20 198 

89 Tuttle v. Knox County. 1 21 224 

U 

90 Union County v. Knox County. 10 4 490 

65 University v. Knoxville. 2 29 364 
















































DOUBLE INDEXED TABLE OF CASES. xxix 

V Art. Sec. Page 

83 Van Brocklen, Anderson v. 11 8 550 

10 Vanzant v. Waddel. 1 6 16 

10 Vanzant v. Waddel. 1 8 57 

10 Vanzant v. Waddel. 1 20 140 

W 

10 Waddel, Vanzant v.... 1 6 16 

10 Waddel, Vanzant v. 1 8 57 

10 Waddel, Vanzant v. 1 20 140 

10 Wally v. Kennedy. 1 8 47 

35 Walton v. State. 1 10 106 

84 Ward, Nashville v. 2 28 311 

20 Ward v. State. 1 10 102 

56 Ward, State v. 3 6 385 

42 Ward v. Thomas. 6 2 418 

81 Warner, State v. 1 9 89 

31 Washington v. Nashville. 2 29 376 

41 Washington County, Deaderick v. 1 8 45 

7 Washington County, Sevier v. 1 8 26 

52 Water Co., Memphis v. 1 20 185 

52 Water Co., Memphis v. 1 22 229 

62 Water Co., Memphis v. 2 17 273 

52 Water Co., Memphis v. 11 8 540 

8 Waterhouse, State v. 1 10 95 

55 Waterhouse v. The Schools. 2 29 365 

17 Waters v. Lewis. 6 2 415 

61 Watson, Perkins v. 11 7 511 

64 Watson, State and v. Bank. 1 20 168 

64 Watson, State and v. Bank. 11 12 565 

53 Webster v. Rose. 1 20 173 

6 Weeks, McCarroll v. 1 8 54 

8 Wetherspoon v. State. 1 21 221 

42 White v. Hale. 1 22 229 

54 White v. Railroad. 1 21 217 

50 White v. State. 6 12 456 

87 Whitson, State ex rel v. Algood. 2 17 292 

87 Whitson, State ex rel v. Algood. 2 18 301 

87 Whitson, State ex rel v. Algood. 2 21 302 

76 Whitworth, State ex rel Gaines v. 1 20 191 

76 Whitworth, State ex rel Gaines v. 2 17 284 

32 White, Clack v. 1 21 222 

32 White v. Nashville. 2 29 377 

66 Wilburn, State .. 1 26 238 

50 Wilcox v. State. 6 1 406 

81 Willaford v. Pickle. 2 17 277 

46 Williams v. Boughner. 5 5 402 

21 Williams, Clark v. 2 2 246 

39 Williams, Fogg v. 1 31 240 

89 Williams v. Nashville. 1 8 63 

89 Williams v. Nashville. 2 2 255 

89 Williams v. Nashville. 2 19 306 



















































XXX 


DOUBLE INDEXED TABLE OF CASES. 


Report. Art. Sec. Page 

89 Williams v. Nashville. 11 8 549 

10 Williams v. Norwood. 6 9 441 

71 Williams, State ex rel v. McConnell. 2 17 287 

71 Williams, State ex rel v. McConnell. 2 18 298 

70 Williams and State, Northern .. 6 2 424 

3 Williams v. Register. 1 17 125 

74 Williams v. State. 2 18 299 

84 Williams v. Taxing District. 1 8 59 

84 Williams v. Taxing District. 1 17 129 

1st T. L. R. Williams v. Williams. 11 11 558 

79 Willet v. Belleville. 11 8 549 

54 Willis, Harrison v. 1 17 120 

79 Wilson v. Benton. 2 17 289 

68 Wilson v. Gaines. 11 8 532 

38 Wilson, Hockaday v. 2 17 273 

89 Wilson County, Railroad v. 6 1 414 

16 Wilson, Richardson v. 1 20 179 

50 Wilson v. State. 1 9 65 

80 Wilson, State v. 2 17 284 

80 Wilson, State v. 11 8 541 

55 Wiltze v. State. 2 28 325 

60 Winston v. Railroad. 2 29 349 

18 Wood v. Orr. 1 20 149 

82 Woodard v. Brien. 11 8 520 

23 Woodfin v. Hooper. 1 20 180 

61 Woodfolk, Lewis v. 1 20 155 

32 Woodfolk v. Railroad. 1 21 208 

43 Woodfolk v. Bank. 1 20 184 

82 Woods v. State. 1 9 71 

134 U. S. 1 Woodson, Railroad v. 1 8 43 

32 Wynne v. Wynne. 1 20 145 

Y 

52 Yancy v. Yancy. 2 2 264 

52 Yancy v. Yancy. S 4 579 

95 Yardley, State v. 1 6 12 

95 Yardley, State v. 1 18 132 

95 Yardley, State v. 2 17 295 

13 Young, Officer v. 1 8 41 


See Railroad v. Mahoney. 








































DOUBLE INDEXED TABLE OF CASES. 


XXXI 


DOUBLE INDEXED TABLE OF CASES 


In Which the United States Constitution Only is Considered. 


Report. 

21 Allen, State v. 

43 Bank v. Hill. 

59 Barrett v. Oppenheimer. 

67 Bird v. Key. 

"94 Brinkley, Menkin v. 

71 Butler, State v. 

58 Cowan v. Mitchell. 

95 Dugger v. Insurance Co. 

19 Estes v. Kyle. 

3 Evans, Winchester v. 

90 Fitzsimmons v. Johnson. 

16 Foreman, State v. 

3 Francis, Kincaid v. 

63 Gowen v. Shute. 

4 Hartley v. U. S. 

43 Hill, Bank v. 

91 Hurford v. State. 

95 Insurance Co., Dugger v. 

90 Johnson, Fitzsimmons v. 

36 Johnson, Shelton v. 

67 Key, Bird v. 

3 Kincaid v. Francis. 

19 Kyle, Estes v. 

72 Lightburne v. Taxing District 

16 Lowry v. McGhee. 

16 McGhee, Lowry v. 

94 Menkin v. Brinkley. 

58 Mitchell, Cowan v. 

59 Oppenheimer, Barrett v. 

53 Railroad v. Taylor. 

36 Shelton v. Johnson. 

63 Shute, Gowen v. 

72 Taxing District, Lightburne v. 

53 Taylor, Railroad v. 

65 Turley v. Taylor. 

3 Winchester v. Evans. 


Art. Sec. Page 

. 4 2 604 

. 3 2 598 

. 4 1 601 

. 3 2 598 

. 4 1 602 

. 1 8 593 

. 1 8 592 

14th Amend. 608 

. 4 1 599 

. 4 1 599 

. 4 1 602 

. 2 2 596 

. 4 2 604 

. 1 10 595 

.. 3 2 598 

. 3 2 598 

. 1 8 593 

14th Amend. 608 

. 4 1 602 

. 4 1 601 

. 3 2 598 

. 4 2 604 

. 4 1 599 

. 1 8 593 

. 1 10 594 

. 1 10 594 

. 4 1 602 

. 4 1 592 

. 4 1 601 

. 1 10 593 

. 4 1 601 

. 1 10 595 

. 1 8 593 

. 1 10 593 

. 4 1 602 

. 4 1 599 







































XXX11 


INDEX TO CASES QUOTED FROM IN FOOTNOTES. 


INDEX TO CASES QUOTED FROM IN FOOTNOTES. 


Page 

Allen v. State. 384 

Bank v. Cooper. 405 

Burton v. Commissioners. 510 

Claiborne, State v. 25 

Dyer y. State. 305 

Frierson v. Presbyterian Church. 583 

George v. Gamble. 241 

Marr v. Enloe. 332 

Morristown v. Shelton. 510 

O’Neal v. State. 13 

Overton v. Campbell. 458 

Shields v. Walker. 241 

Smith v. Normant. 420 

Smith and Lane, State v. 507 

Turk, State v. 45& 

Waterhouse v. Martin. 451 

Williams v. Karnes. 110 


























INDEX BY ARTICLES AND SECTIONS TO CONSTITUTION OF TENNESSEE. 



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For Schedules, Resolutions, etc., of first two Constitutions, and names of members thereof, see pages 583-586. 















































































































































































































INDEX TO CONSTITUTION OF TENNESSEE. 


INDEX BY SUBJECTS TO CONSTITUTION OF TENNESSEE. 


A 

Art. Sec. Page. 

Abuse of liberty. 1 19 132 

Academies, laws in favor of not interfered with. 11 12 560 

Acts of general assembly, members may protest against any. 2 27 308 

Accused persons, rights of. 1 9 64 

Ad valorem tax on property. 2 28 310 

Adjournments, legislative. 2 11 269 

“ “ . 2 16 270 

Adjutant general, governor to appoint..;. 8 2 479 

Adoption of persons, where accomplished. 11 6 509 

Affirmation. (See Oath) . 10 2 481 

Age for elector, 21 years. 4 1 389 

representative, 21 years. 2 9 269 

senator, 30 years. 2 10 269 

governor, 30 years. 3 3 383 

judge Supreme court, 35 years. 6 3 426 

inferior court, 30 years. 6 4 427 

Alienation of homestead. 11 11 554 

Amendments to Constitution, how proposed aud consummated. 11 3 506 

U. S. Constitution, when to be acted upon. 2 32 382 

Answer to criminal charge, how prisoner put to. 1 14 110 

Appointments, vacant, governor shall temporarily fill. 3 14 388 

to fill vacancies, duration of. 7 5 475 

by courts, when to be made and take effect.Sch. 1 574 

Apportionment of representation. 2 4 268 

representatives. 2 5 268 

senators . 2 6 268 

Appropriation of money, legislative. 2 24 308 

Arms, the right to bear. 1 26 230 

citizen who pays, not compelled to bear. 1 28 239 

what sects relieved from bearing. 8 3 479 

Armies, standing, dangerous. 1 24 230 

Army, governor commander-in-chief of. 3 5 383 

Arrest of citizens, restricted. 1 8 25 

to be without rigor. 1 13 110 

members of assembly, how far privileged from ... —. 2 13 270 

how far citizens free from, at elections. 4 3 401 

Assembly. (See General Assembly.) 

Assessment of fines against citizen. 6 14 460 

Associations, State not to have stock in. 2 31 382 

Atheist, disqualified for office. 9 2 480 

Attorney general and State reporter. 6 5 434 

appointed by judges of Supreme court. 6 5 434 

term of office. 6 5 434 

when appointed.Sch. 2 575 

Attorney for the State, liable to impeachment. 5 4 402 

general assembly may remove, and how. 6 6 437 

by whom elected. ® ® 434 

his qualifications and term of office. 0 5 434 

Attorney, when failing to attend court and prosecute. 6 5 434 

when special election for. 7 5 475 

Authority, military subordinate to civil.’. 1 24 230 

Ayes and noes on passage of bills. 2 21 296 

to be entered in journal. 2 2 * 296 























































XXXVI 


INDEX TO CONSTITUTION OF TENNESSEE. 


B 

Art. Sec. Page. 

Bail, all entitled to, except in capital offenses, when. 1 15 111 

not to be excessive. 1 16 111 

Ballot, voting to be by. 4 4 401 

Ballot box, general assembly to secure purity of. 4 1 389 

Bank, State shall own no. 2 31 382 

Bills, may oiiginate in either house. 2 17 271 

but may be amended or repealed by the other. 2 17 271 

to have but one subject and that expressed in caption. 2 17 271 

to repeal, revive or amend, caption of, or bill, what to recite. 2 17 217 

to be read and passed three times. 2 18 296 

how they become law. 2 18 296 

rejected, not to be passed in substance the same session. 2 19 296 

to be presented to governor for signature. 3 18 388 

if returned to be reconsidered. 3 18 388 

if again passed after return, to become law. 3 18 388 

votes on, to be entered on journal. 3 18 388 

not returned or not signed by governor, when they become law. 3 18 388 

of rights, provisions respecting. 11 16 573 

Bledsoe countv, not to be divided. 10 4 - 482 

Blood, no corruption of. 1 12 110 

Bonds, State, when to be refused to railroads. 2 33 382 

incomes from, when liable to taxation. 2 28 310 

Bribery of electors. 10 3 481 

disqualifies for six years. 10 3 481 

Bribe, elector receiving, to be punished. 10 3 481 

giver or promiser of a, to be punished. 10 3 481 

Brigadier generals to appoint staff officers. 8 2 479 

C 

Capital offenses not bailable, when. 1 15 111 

of merchants, how taxed. 2 28 310 

Carrying of arms to be regulated.*. 1 26 230 

Causes removed by certiorari , when. 6 10 448 

Census of voters. 2 4 268 

Certiorari, judges or justices may issue. 6 10 448 

Challenge, sender or bearer of, disqualified. 9 3 480 

Chancellors, elected by the people. 6 4 427 

to appoint their clerks and masters . 6 13 458 

liable to impeachment. 5 4 402 

Charges, judges confined to law and testimony. 6 9 441 

not to be upon matters of fact. 6 9 441 

Chief justice to preside at impeachment trials. 5 2 402 

Children, homestead exempted in favor of. 11 n 554 

Circuits, to elect their judges. 6 4 427 

Citizens have the right to assemble. 1 23 230 

may speak, write, and print, but responsible for abuse. 1 19 132 

guarded against martial law . 1 25 230 

right to bear arms for common defense. 1 26 230 

not compelled to, if they pay equivalent. 1 28 239 

how to vote when county changed. 10 5 483 

an elector must be a. 4 4 339 

a representative must be a. 2 9 269 

a senator must be a. 2 10 269 

the governor must be a. 3 3 333 

happiness and prosperity of, promoted. 11 iq 554 

not imprisoned, etc., without judgment. 1 8 25 

not to be fined over $50 but by jury. 3 14 453 

Civil authority, military subordinate to. 1 24 230 

Civil districts. (See Districts.) 

Civil officers liable to indictment. 5 5 492 

time of holding election for. 7 5 475 

Civil cases, powers of judges and justices in, to issue certiorari . 6 10 448 





























































INDEX TO CONSTITUTION OF TENNESSEE. 

C 


Clergy, the, their disqualifications... 

Clerks to sign and attest writs. 

of Supreme court, judges to appoint.. 

and masters in chancery, chancellors to appoint. 

of inferior courts elected by people. 

terms of office of the various .. 

of courts, when removable. 

vacancies, how filled. 

shall not have seat in general assembly. 

Cocke county excepted from certain provisions.. 

Cohabitation, white with colored, prohibited. 

Collectors, defaulting, ineligible. 

Colleges, laws in favor of, not to be interfered with. 

Commander-in-chief, governor to be. 

Committees of the whole, legislative, to sit with open doors. 

Commission and grants, provisions respecting.. 

special, when judge is disqualified. 

Common schools, fund for, to be perpetual. 

interest of fund to go to.. 

no law shall authorize infringement on fund. 

poll tax to be appropriated to. 

whites and negroes to be separated in .. 

defense, arms may be borne for. 

Company or corporation, State shall not be shareholder in. 

Compensation to be made for service and property taken for public use 

of members of general assembly. 

of senators in impeachment cases. 

of goveruor. 

when to be increased or diminished. 

Comptroller, appointment of, and term of office. 

to hold over until general assembly meets.. 

liable to impeachment. 

Computation of term of office. 

Conclusion of indictments. 

Concurrence of two judges of Supreme court necessary, when. 

three “ “ “ “ “ . 

Congress, members of not eligible for governor. 

Conscience, rights of. 

Constable, one for each district. 

two for county town... 

jurisdiction of. 

term of office of. two years. 

vacates office by removal. 

Constitution, State and United States, oath to support, a qualification. 

when to be taken. 

officers to take oath to, and when. 

laws and ordinances in force or abrogated by. 

not to impair contracts, etc., or affect rights, etc. 

amendments to, how proposed and consummated. 

how altered or abolished.. 

declaration of rights a part of the. 

Contract, this Constitution not to impair. 

laws impairing, forbidden. 

Convention, State, of 1870. (Preamble) . 

when to act upon U. S. constitutional amendments. 

to change Constitution provided for. 

proposition to call, when may be submitted. 

Conventional rate of interest. 

Conviction, not to work corruption of blood or forfeiture. 

of infamous crimes, deprives of suffrage. 

Coroner, elected by justices. 

removable for malfeasance or neglect. 

Corporation courts, may be vested with jurisdiction. 


xxxvii 


Art. 

Sec. 

Page. 

9 

1 

480 

6 

12 

456 

6 

13 

458 

6 

13 

458 

6 

13 

458 

6 

13 

458 

6 

13 

458 

7 

2 

465 

2 

26 

308 

10 

4 

482 

11 

14 

507 

2 

25 

308 

11 

12 

560 

3 

5 

383 

2 

22 

307 

3 

16 

3ss 

6 

11 

451 

11 

12 

456 

11 

12 

456 

11 

12 

456 

11 

12 

456 

11 

12 

456 

1 

26 

230 

2 

31 

382 

1 

21 

205 

2 

23 

307 

o 

23 

307 

3 

7 

385 

3 

7 

385 

7 

3 

471 

Sch. 

1 

574 

5 

4 

402 

7 

5 

475 

6 

12 

456 


2 

575 

6 

2 

415 

3 

13 

388 

1 

3 

4 

6 

15 

461 

6 

15 

461 

6 

15 

461 

6 

15 

461 

6 

15 

461 

1 

4 

4 

10 

1 

481 

Sch. 

3 

575 

11 

1 

499 

It 

2 

505 

11 

3 

506 

11 

3 

506 

11 

16 

573 

11 

2 

505 

1 

20 

138 

• • 

• s 

1 

2 

32 

382 

11 

3 

506 

11 

3 

506 

11 

7 

509 

1 

12 

110 

1 

5 

4 

7 

1 

465 

7 

1 

465 

6 

1 

437 

































































XXXV111 


INDEX TO CONSTITUTION OF TENNESSEE. 


c 

Corporations, not to be created, etc., by special laws.1... 

to be organized under general laws. 

vested rights of, not to be interfered with. 

and counties may be empowered to tax. 

Counsel, judges may not preside in cases where they have been 

County, ratio of representation of a. 

to elect clerk of court. 

how districted. 

town district to elect justices and constables. 

and State officers. 

justices to elect coroner and ranger for. 

line, its distance from court house. 

County of Bledsoe, not to be changed. 

of Marion, provisions respecting. 

consent of two-thirds of voters to change limits of. 

what required to change seat of justice of. 

pro rata debt or creditors on changing limits of. 

how citizens shall vote after change of limits of. 

an old, extent to which it may be reduced. 

offices, how filled. 

County court, offices filled by. 

Counties and corporations may be empowered to tax. 

excepted from general provisions on loans. 

new, legislature may establish. 

extent and population of. 

distance of line from court house. 

special exemptions from provisions concerning. 

certain counties declared constitutional. 

of Obion and Cocke, relieved from certain provisions ... 
certain, exempted from provisions for formation of new 

Courts shall be open. 

to remove convicted officers.. 

are depositories of judicial power of State. 

proceedings in, not affected by this Constitution. 

appointments by, when made, and when to take effect.. 

may be held by special judges, when. 

Court, Supreme, to have five judges. 

but six to be chosen at first election. 

how reduced to five judges. 

jurisdiction appellate.•. 

other jurisdiction. 

sessions of, where to be held. 

may sit in two sections, when. 

legislature may prescribe rules for. 

judges of, when elected.. 

where to reside. 

to designate chief justice. 

three to concur in decision. 

but two may concur, when . 

elected by whom. 

qualification of. 

term of service of . 

liable to impeachment. 

compensation of, not to be altered. 

fees and perquisites not allowed to. 

attorney general and reporter, appointed by. 

no other office to be held by. 

not to preside in cause, when. 

what, in case of incompetency of. 

to appoint their own clerks.. 

Courts, inferior, to be established by legislature. 

judges of, to be elected. 

to be thirty years of age. 


Art. 

Sec. 

Page. 

11 

8 

516 

11 

8 

516 

11 

8 

516 

2 

29 

335 

6 

11 

451 

2 

5 

268- 

G 

13 

458 

6 

15 

461 

6 

15 

461 

7 

1 

465 

7 

1 

465 

10 

4 

482 

10 

4 

482 

10 

4 

482 

10 

4 

482 

10 

4 

482 

10 

4 

482 

10 

5 

483 

10 

4 

482 

11 

17 

573 

11 

17 

573 

2 

9 

335 

2 

29 

335 

10 

4 

482 

10 

4 

482 

10 

4 

482 

10 

4 

482 

10 

4 

482 

10 

4 

482 

10 

4 

482 

1 

17 

113 

5 

5 

402 

1 

6 

5 

11 

2 

505 

Sch. 

1 

574 

G 

11 

451 

6 

2 

415 

Sch. 

2 

575 

Sch. 

2 

575 

G 

2 

415 

6 

2 

415 

6 

2 

415 

Sch. 

2 

575 

6 

3 

426 

Sch. 

2 

575 

6 

2 

415 

G 

2 

415 

G 

2 

415 

Sch. 

2 

575 

6 

3 

426 

6 

3 

426 

G 

3 

426 

5 

4 

402 

G 

7 

438 

6 

7 

438 

6 

5 

434 

G 

7 

438 

6 

11 

451 

6 

11 

451 

y 

13 

458 

6 

1 

405 

G 

4 

427 

6 

4 

427 


































































INDEX TO CONSTITUTION OF TENNESSEE. 


xxxix 

C 

Art. Sec. Page. 

other qualifications. 6 4 42^ 

term of office of eight years. 6 4 427 

to receive compensation, how. 6 7 438 

not to receive fees or perquisites. 6 7 438 

removed from office, how. 6 6 437 

liable to impeachment.;. 5 4 402 

to fill vacancy in office of clerk. 7 2 465 

may issue certiorari, when. 6 10 448 

jurisdiction of, to be as now established, until changed. 6 8 440 

clerks of, elected by people.... 6 13 458 

Courts of justice, may have power over private and local affairs.. 11 9 552 

may be authorized to grant divorces. 11 4 507 

to change names, legitimatize, and sanction the adoption of persons. 11 6 509 

holden by justices of peace, may be established. 6 1 405 

corporation, legislature may vest with jurisdiction. 6 1 405 

Court house, distance of new county line from. 10 4 482 

Credit of counties, cities, or towns, how loaned. 2 29 335 

the State not to be loaned. 2 31 382 

Credits, fractions of counties entitled to pro rata . 10 4 482 

Crime in office punishable. 5 4 402 

“ “ “ ... 5 5 402 

Criminal prosecution, rights of accused persons in. 1 9 64 

charge, how persons put to answer. 1 14 110 

Criminals, may be deprived of the right of suffrage. 4 2 401 

Cruelty, prisoners not to be treated with. 1 13 110 

D 

Day of rest, public services not to be required on. 11 15 573 

Debt, no imprisonment for. 1 18 131 

Debts, not impaired by Constitution. 11 2 505 

Death of governor. 3 12 387 

Declaration of rights. 1 .. 2 

Defaulting railroads to be refused bonds. 2 33 382 

Delegates to State convention. 11 3 506 

Delegated powers, how guarded. 11 16 573 

Department, civil, atheists disqualified from holding office in the. 9 2 480 

executive, officers of the, to take oath.Sch. 3 575 

Departments of government, three distinct. 2 1 243 

Departmental powers. 2 2 243 

Disqualified, when judges are, how causes to be tried. 6 11 451 

Disqualification from impeachment. 5 4 402 

Disqualifications, of clergy. 9 1 480 

deniers of the being of a God, etc. 9 2 480 

principles in, abettors of, challengers to duels. 9 3 480 

Disqualification, what offices not. 2 26 308 

Distribution of powers. 2 ' 1 243 

Districts, ratio of representation among the. 2 5 268 

formation of. 2 6 268 

to elect clerks of court. 6 13 458 

how formed in counties. 6 15 461 

to elect justices and constables, and how many. 6 15 46 1 

District attorney, when special election for. (See Attorney for State) . 7 5 475 

Divorce, legislature can not grant a. 11 4 507 

courts of justice may be authorized to grant. 11 4 507 

laws must be general and uniform. 11 4 .4)7 

Doctrine of non-resistance. 

Duel, disqualification from being engaged jn a. 9 3 480 

Duty, neglect of, cause for removal. 5 13 458 

Duties of secretary of state. 3 17 388 

Duration of legislative office. 2 3 268 




























































xl INDEX TO CONSTITUTION OF TENNESSEE. 

E 

Art. Sec. Page. 

Education, promotion of. 11 12 560 

Elected, clerks of courts to be. 6 13 458 

justices and constables to be. 6 15 461 

State and county officers to be. 7 1 465 

coroner and ranger to be, by the justices. 7 1 465 

Election of general assembly, time of. 2 7 268 

to terminate the same day. 2 7 268 

its members, each house to judge of. 2 11 269 

governor. 3 2 383 

judges of Supreme court. 6 3 426 

judicial and other officers, when held. 7 5 475 

sheriff, trustee, and register. 7 1 465 

special for judge or district attorney, when held. 7 5 475 

coroner, by the justices. 7 1 465 

Election, biennial, vacancy of judge or district attorney filled at. 7 5 475 

first, of judges, under Constitution.Sch. 2 575 

Elections to be free and equal. 1 5 4 

who may vote at. 4 1 389 

qualifications for voting at. 4 1 389 

to be by ballot, but in general assembly viva voce . 4 4 401 

precincts, general assembly may require voters to vote in. 4 1 389 

general assembly to secure freedom of, by law. 4 1 389 

criminals may be excluded from voting at. 4 2 401 

to fill unexpired term. 7 5 475 

poll tax to be paid before voting at. 4 1 389 

where citizens of new counties may vote in. 10 5 483 

Elector, receiving bribe, to be punished. 10 3 481 

Electors, privileged from arrest at election, how. 4 3 401 

of members of general assembly to choose governor. 3 2 383 

senators apportioned according to numbers of.;. . 2 6 268 

(See Voters.) 

Eligibility to office of governor restricted. 3 4 383 

Enumeration of voters, when made. 2 4 268 

Equal, taxation must be. 2 28 310 

and uniform rate of interest. 11 7 509 

right of worship, etc. 1 2 2 

and free, elections shall be. 1 5 4 

participation in free navigation of Mississippi. 1 29 239 

Equivalent an, for bearing arms may be paid. 1 28 239 

Erection of prisons to be provided for. 1 32 382 

Error, writ of, time which is not to affect a.Sch. 4 576 

Escheated property, heirs or distributees may receive. 11 12 560 

Establishment, no religions to have preference. 1 3 4 

of new counties. 10 4 482 

Estate, not forfeited by conviction. 1 12 110 

to descend as usual in case of suicide. 1 12 110 

Evidence before search necessary. 1 7 23 

accused not compelled to give, against himself. 1 9 64 

Executive department. 2 1 243 

Executive department. 3 .. 383 

governor, supreme power of the. 3 1 383 

officers to supply information to governor. 3 8 385 

computation of term of office of. 7 5 475 

Expenditures and receipts of treasury to be published. 2 24 308 

Exemption of homestead from sale. 11 n 554 

Ex post facto law not to be made. 1 n no 

Expulsion of members of legislature. 2 12 270 

Extent of new counties. 10 4 482 

F 

Fact, judges not to charge on matters of. 6 9 441 

Family, head of, homestead exempted for. 11 n 554 





























































INDEX TO CONSTITUTION OF TENNESSEE. 


xli 


F 

Fines, when exceeding $50 to be assessed by jury. 

not to be excessive. 

Fish, legislation for the protection of. 

Forfeiture of estate, when not incurred. 

Fractions of counties liable, pro rata, for debts, etc 

Free speech and printing. 

Freedom of elections. 

Fund, common school. 


G 

Game, legislation for the protection of. 

General assembly, legislative authority vested, in. 

what constituted of, powers from people. 

apportionment of representatives, when. 

members of, representatives apportioned, how. 

apportionment of senators, how made. 

time of election for, and member’s term. 

of 1870, its term of duration. 

when sessions commence. 

governor may convene extra sessions. 

qualifications of a representative. 

senator. 

members of, not eligible to office. 

each house shall choose speaker, etc. 

judge of member’s qualifications, etc. 

two-thirds to form a quorum. 

may adjourn and compel attendance. 

may adjourn sine die before impeachment trial. 

may make rules, punish and expel members, etc. 

members privileged from arrest or question. 

may punish offending persons. 

how vacancies to be filled. 

not to adjourn without consent. 

power over bills. ( See Bills) . 

to keep and publish journal. 

to takes ayes and noes on bills. 

to sit with open doors. 

compensation of members. 

defaulting collectors not eligible to. 

State and United States officers, not eligible. 

clergy not eligible to. 

governor may give information to. 

members may enter dissent or protest. 

may authorize counties and corporations to impose taxes 

what and how it may tax. 

to have ascertained value of property taxed. 

appropriations required to draw money. 

to provide for electing or filling vacancies of. 

to decide contested election for governor. 

on a tie vote to elect governor. 

to appoint secretary of State. 

to appoint treasurer and comptroller. 

may establish courts. 

prescribe additional justices. 

remove judges and attorneys for the State. 

direct where civil officers shall be indicted. 

prescribe certain rules for Supreme court. 

change jurisdiction of inferior courts. 

vest corporate courts with jurisdiction. 

vest powers, etc., affairs, in courts. 

remove impeachment penalties. 

call out militia. 

relieve from military duty for religious scruples. 


Art. 

Sec. Page. 

6 

14 

460 

1 

16 

111 

11 

13 

566 

1 

12 

110 

10 

4 

482 

1 

19 

132 

4 

1 

389 

11 

12 

560 


11 

13 

566 

2 

3 

268 

2 

3 

268 

2 

4 

268 

2 

5 

268 

2 

6 

268 

2 

7 

268 

Sch. 

1 

574 

2 

8 

269 

n 

O 

9 

386 

2 

9 

269 

2 

10 

269 

2 

10 

269 

2 

11 

269 

2 

11 

269 

2 

11 

269 

2 

11 

269 

5 

3 

402 

2 

12 

270 

2 

13 

270 

2 

14 

270 

2 

15 

270 

2 

16 

270 

2 

17 

271 

2 

21 

•296 

2 

21 

2% 

2 • 

22 

307 

2 

23 

307 

<> 

25 

308 

2 

26 

308 

9 

1 

480 

3 

11 

387 

2 

27 

308 

2 

29 

335 

2 

28 

310 

2 

28 

310 

2 

24 

308 

7 

4 

472 

3 

2 

383 

3 

2 

383 

3 

17 

388 

7 

3 

471 

6 

1 

405 

6 

15 

461 

6 

6 

437 

5 

5 

402 

6 

3 

426 

6 

8 

440 

6 

1 

405 

11 

9 

552 

5 

4 

402 

3 

5 

383 

8 

3 

479 































































xlii 


INDEX TO CONSTITUTION OF TENNESSEE. 


Gr 

Art. Sec. Page.. 

General assembly to prescribe punishment for duelling. 9 3 480 

may establish new counties. 10 4 482: 

two-thirds must concur in changing county seat. 10 4 482 

its action in amending, etc., State Constitution. 11 3 506- 

when may act upon U. S. constitutional amendments. 2 32 382- 

may not grant, but may provide for divorces. 11 4 507 

shall interdict marriages between white and colored persons. 11 14 567 

to regulate rate of interest. 11 7 509* 

can not change name, legitimatize, etc. 11 6 509 

shall direct application of poll tax to education. 11 12 560- 

shall encourage internal improvement. 11 10 554 

may legislate to protect fish and game. 11 13 560- 

to provide for organizing corporations by general laws. 11 8 516 

no special laws for individuals or corporations. 11 8 516 

may provide special judges. 6 11 451 

treasury accounts to be published with the laws. 2 24 308 

General warrants dangerous, and prohibited. 1 7 23- 

laws, when not to be suspended. 11 8 516 

God, to deny being of disqualifies. 9 2 480 

Government, State, formed 1796. ( Preamble) . 1 

three departments of. 2 1 243. 

Governmental powers, bill of rights excepted from. 11 16 573 

Governor, inauguration of. 2 8 269- 

vested with supreme executive power. 3 1 383 

when elected, and by whom. 3 2 383 

returns of election of, opened by speaker of senate. 3 2 383- 

tie vote for, how decided. 3 2 383 

contested election for, how determined. 3 2 383 

his qualifications. 3 3 383 

term of office. 3 4 383 

ineligible two years out of eight. 3 4 383 

commander-in-chief, of militia, army and navy. 3 5 383 

may grant reprieves and pardons. 3 6 384 

his compensation, which is not to be changed. 3 7 384 

to issue writs to fill vacancies. 2 15 270 

to approve bills passed by legislature. 2 18 296 

may require information from executive officers. 3 8 385 

may convene general assembly in extra sessions. 3 9 386 

shall execute the laws. 3 10 387 

shall recommend measures, etc., to general assembly. 3 11 387 

who to succeed in case of death or removal. 3 12 387 

who not eligible to. 3 13 388 

shall temporarily fill vacant offices. 3 14 388 

shall keep and use the seal of the State. 3 15 388 

shall seal and sign grants and commissions. 3 16 388 

Secretary of State shall register his acts, etc. 3 17 388 

to approve, etc., legislative bills, etc. 3 18 388 

objections to bills, etc., to be in writing. 3 18 388 

liable to impeachment. 5 4 402 

to appoint special judges, when. 6 11 451 

to commission justices. 6 15 451 

computation of term of office of. 7 5 47^ 

of 1870, his term of office.Sch. 1 574 

Grand divisions, two Supreme court judges to reside in each. 6 2 415 

Grants and commissions to be sealed. 3 15 ggg 

Great Seal of Tennessee. 3 16 388 

H 

Habeas corpus, not to be suspended, except to. 1 15 444 

Hereditary privileges not to be granted. 1 30 239 

Holders of public money, defaulting ineligible. 2 25 308 

Homestead, in what respect exempted or liable. 44 44 554 






























































INDEX TO CONSTITUTION OF TENNESSEE. xliii 

H 

Art. Sec. Page. 

House of representatives, with senate, legislative authority vested. 2 3 268 

apportionment of representatives to. 2 5 268 

election of representatives in, when held. 2 7 268 

qualification of representatives to. 2 9 269 

the, is the sole impeaching power. 5 1 402 

three members, to prosecute impeachment. 5 3 402 

to decide on impeaching. 5 4 402 

House, each to choose speaker, etc. 2 11 269 

to judge of election, etc., of members. 2 11 269 

two-thirds of, a quorum. 2 12 270 

to determine its rules of proceeding. 2 12 270 

may punish or expel a disorderly member. 2 12 270 

members of, how free from arrest. 2 13 270 

not to be questioned for speech in debate. 2 13 270 

may punish misbehaving persons. 2 14 270 

how vacancies filled in. 2 15 270 

how adjournments made. 2 16 270 

bills may originate in. 2 17 271 

to take ayes and noes on passage of. 2 21 296 

to keep and publish journal. 2 21 2% 

to sit with open doors. 2 22 307 

compensation of members of. 2 23 307 

defaulting collectors ineligible to either. 2 25 308 

certain officers ineligible to. 2 26 308 

the clergy ineligible to. 9 1 480 

members of, may dissent or protest. 2 27 308 

when speaker of, may become governor. 3 12 387 

each house must pass bills, and how. 3 18 388 

must consider governor’s objections. 3 18 388 

vote of, yea and nay, etc. 3 18 388 

how bills, etc., are passed over governor’s veto. 3 1 8 388 

to vote on removal of judges, etc., and how. 6 6 437 

members of, to take oath. 10 2 481 

to consider proposed constitutional amendments. 11 3 506 

Husband and wife, alienation of homestead by. 11 11 554 

I 

Impeachment, mode of accusation. 1 14 110 

Impeachments. . *> •• 402 

house of representatives has sole power of. 5 1 402 

to be tried by senate, and how. 5 2 402 

three members of house to prosecute. 5 3 402 

legislature to adjourn sine die before trial of. 5 3 402 

what officers liable to, and how made so. 5 4 402 

what judgment may be pronounced. 5 4 402 

party, may be otherwise punished by law. 5 4 402 

legislature may remove the penalties imposed. 5 4 402 

Imprisonment, none without judgment, or by law. 1 8 

to be without rigor. 1 13 110 

Improvement internal, to be encouraged. 11 10 554 

Improvements to value of $1,000 exempted from sale. 11 11 5;>4 

Inauguration of governor. 2 8 269 

Incomes may be taxed. 2 28 310 

Incompetency, or inability, special judges in cases of. 6 11 451 

cause for removal. 0 13 458 

Incorporated towns, justices in. 6 15 461 

may be empowered to impose taxes. 2 29 335 

Indictment, criminal charge to be by, presentment or impeachment. 1 14 110 

for libel, how tried. 1 132 

civil officers liable to, when. ,r > 5 402 

how an, shall conclude. 0 12 456 

Individuals not to be specially favored in legislation. 11 8 516 






























































xliv 


INDEX TO CONSTITUTION OF TENNESSEE. 


I 


Ineligible, when, for sheriff. 

senators and representatives, when, and for what... 

governor, when. 

members of congress and State officers, for governor 

ministers of religion, and why. 

Ineligibility to office of defaulting collectors, etc. 

(See Disqualifications.) 

Information, governor may require of officers. 

shall impart to general assembly. 

Injuries, remedy for, by due course of law. 

Inspection of prisons. 

Interest, rate of, legislature to fix. 

of common school fund to go to schools. 

Invasion, cause for suspension of habeas corpus . 

J 

Jail, confinement in, to be without rigor. 

Jeopardy, no person to be twice in. 

Journal, each house to keep. 

Judges, judicial power vested in. 

of Supreme court, number of. 

six to be elected, when. 

two, from each grand division. 

a vacancy after 1873, to remain unfilled. 

may sit in two sections. 

when two must concur. 

to take oath to Constitution. 

residence of, to designate chief justice. 

when three must concur. 

qualifications and term of. 

when notify governor of incompetency. 

liable to impeachment. 

to appoint their clerks. 

attorney general and reporter. 

senior associate to preside on impeachment, when.. 

inferior courts, how elected. 

of inferior courts, qualification of, and term of. 

may be removed by general assembly, and how. 

compensation of, which may not be changed. 

fees and perquisites forbidden. 

to hold no State or United States office. 

not to charge juries on matters of fact. 

may award certiorari . 

in what causes a, may not preside. 

provisions in case of incompetency of. 

special, appointment of. 

liable to impeachment. 

not to have seat in general assembly. 

election of, to fill vacancy, when. 

Judicial power, where vested. 

officers, time of holding election for. 

Judgment of peers, no man to be imprisoned, etc., but by.. 

Jurisdiction of corporate courts. 

inferior courts. 

Supreme court, appellate only. 

justices and constables. 

Jurors, no religious or political test as a qualification for.... 

Jury, right of trial by to remain inviolate. 

in criminal cases. 

in cases of libel. 

to assess fines, if beyond .$50. 

not to be charged on matter of fact. 


Art. 

Sec. 

Page. 

7 

1 

465 

2 

10 

269 

3 

4 

383 

2 

13 

270 

9 

1 

480 

2 

25 

308 

3 

8 

385 

3 

11 

387 

1 

17 

113 

1 

32 

241 

11 

7 

509 

11 

12 

560 

1 

15 

111 


1 

13 

no 

1 

10 

93 

2 

21 

296 

6 

1 

405 

6 

2 

415 

Sch. 

2 

575 

Sch. 

2 

575 

Sch. 

2 

575 

Sch. 

2 

575 

Sch. 

2 

575 

Sch. 

3 

575 

6 

2 

415 

6 

2 

415 

6 

3 

426 

6 

11 

451 

5 

4 

402 

6 

13 

458 

6 

5 

434 

5 

2 

40c 

6 

4 

427 

6 

4 

427 

6 

6 

437 

6 

7 

438 

6 

7 

438 

6 

7 

438 

6 

9 

441 

6 

10 

448 

6 

11 

451 

6 

11 

451 

6 

11 

451 

5 

4 

402 

2 

26 

308 

7 

5 

475 

6 

1 

405 

7 

5 

475 

i 

8 

25 

6 

1 

405 

6 

8 

440 

6 

2 

415 

6 

15 

461 

1 

6 

5 

1 

6 

5 

1 

9 

64 

1 

1 

2 

6 

14 

460 

6 

9 

441 





























































INDEX TO CONSTITUTION OF TENNESSEE. 


xlv 

J 

Art. Sec. Page. 

Justice, to be without sale, denial or delay. 1 17 113 

courts of, may be authorized to grant divorces. 11 4 507 

Justices of the peace, judicial power vested in... 6 1 405 

by whom elected. 6 15 461 

to district, three in county town districts. 6 15 461 

may issue certiorari . 6 20 443 

to be commissioned by governor. 6 15 401 

additional, for incorporated towns. 6 15 461 

term of office of. 6 25 461 

vacates by removal from district. 6 15 461 

courts to be holden by. 6 1 406 

may fill vacancy of sheriff, trustee or register. 7 2 465 

liable to indictment. 5 5 402 

K 

Killing by casualty works no forfeiture. 1 12 no 

Knowledge essential to republican institutions. 11 12 560 

L 

Law, ex post facto, forbidden. 1 n no 

the remedy for injuries. 1 17 113 

to imprison for debt, forbidden. 1 18 131 

shall not restrain rights of the press. 1 19 132 

how bills become. 2 18 296 

retrospective, or impairing contracts forbidden. 1 20 138 

governor to execute. 3 10 387 

to decide contest election for governor. 3 2 383 

and testimony alone to be charged by judges. 6 9 441 

to decide how clerks are to be removed. 6 13 458 

to divert common school fund, forbidden. 11 12 560 

to regulate distribution of escheated property. 11 12 560 

to prescribe how county officers may be removed. 7 1 165 

Laws, style of, when to take effect. 2 20 296 

consistent with Constitution, in force. 11 1 499 

general, not to be suspended for individual purposes. 11 8 516 

not to be passed for individual advantage. 11 8 516 

general, for organizing corporations, may be made. 11 8 516 

Learning, essential to republican institutions. 11 12 560 

Legislative department. 2 3 268 

authority, where vested. 2 13 270 

appropriation not to diminish school fund. 11 12 560 

Legislature. (See General Assembly.) 

Liberty, citizen not to be deprived of except by judgment. 1 8 25 

Libel, in indictments for, the truth may be given in evidence. 1 19 132 

jury to determine law and facts. 1 19 132 

Limit of appointment, etc., for unexpired term. 7 5 475 

Limits of State defined. 1 31 240 

Limitations, statute of, when not to run .Sch. 4 576 

Literature, general assembly to cherish. 11 12 560 

Lines of new counties, how far from court house. 10 4 482 

List of counties excepted from provisions on loans. 2 29 335 

Loan of credit of city or county, how made. 2 29 335 

Local affairs, courts invested with power in. 11 9 552 

Lottery, legislature not to authorize a. 11 5 507 

tickets, sale of, to be prohibited. 11 5 507 

Lucrative office, but one to be held by same person. 2 26 308 

M 

Major general to appoint staff officers. 8 2 479 

Majority of members elected to each house to assent to bills. 2 18 271 

Malfeasance, clerks may be removed for. 6 13 458 

county officers may be removed for. 7 1 465 

























































xlvi 


INDEX TO CONSTITUTION OF TENNESSEE. 


M 

Manufactured home produce not to be taxed. 

Man, no right of property in. 

Marion county, portions of detached. 

Marriage whites and colored persons prohibited. 

Martial law restricted. 

Masters in chancery, chancellors to appoint. 

Measures, governor may recommend. 

Meeting to instruct representatives, etc., right of. 

Members of general assembly to vote viva voce , when. 

of congress, not to execute office of governor. 

Merchants may be taxed, capital of, how taxed. 

Military duty, all male citizens liable to. 

power, subordinate to civil. 

Militia, appointment not disqualificative. 

when to be called into service. 

who to elect officers of. 

legislature may exempt from, for religious opinion.. 

legislature to establish rules for elections in. 

governor to appoint adjutant general of, and staff... 

major general, etc., to appoint own staff. 

Minister of religion, ineligible to seat in legislature. 

Miscellaneous provisions. 

Misdemeanor, official, punishable. 

Mississippi river, free navigation of. 

Mode of charging crime. 

Mode of suing the State. 

Money, to be drawn on appropriation only. 

receipts, etc., of public, to be published. 

rate of interest on. (See Interest) . 

Monopolies forbidden. 

Mulattoes, marriage, etc., of, with whites interdicted. 

N 

Names of counties excepted from provisions on loans. 

persons, may be changed, how.. 

Navigation of Mississippi river, free. 

Navy, governor commander-in-chief of.. 

New laws, when to take effect. 

Negroes, marriage of, or cohabitation with whites forbidden 

Non-residents, tax on merchandise sold to. 

Non-resistance, doctrine of condemned. 

Number of representatives. 

senators. 


O 

Oath of office, to be taken by all officers. 

to support Constitutions, no test except. 

of members of general assembly, form of. 

to support this Constitution, to take or vacate office, when 

Obion county, excepted from certain provisions. 

Official crime punishable.. 

acts of governor to be recorded. 

Officials, departmental, not to exercise each other’s power. 

Offenses, to be described in warrants. 

Offense, not to be put twice in jeopardy for same. 

capital not bailable, except when .’. 

Office, senators and representatives ineligible to what. 

defaulting collectors ineligible to. 

lucrative, but one to be held by same person. 

what not lucrative. 

. _ ,. removal from, on impeachment... 


Art. 

Sec. 

Page. 

2 

30 

379 


34 

242 


4 

482 


14 

567 


25 

230 


13 

458 


11 

387 


23 

230 


4 

401 


13 

388 


28 

310 


1 

389 

i 

24 

230 

2 

26 

308 

3 

5 

383 

8 

1 

479 

8 

3 

479 

8 

1 

479 

8 

2 

479 

6 

2 

415 

9 

1 

480 

11 

. . 

499 

5 

5 

402 

1 

29 

239 

1 

14 

110 

1 

17 

113 

2 

24 

308 

2 

24 

308 

11 

7 

509 

* 1 

22 

227 

11 

14 

567 


2 

29 

335 

11 

6 

509 

1 

29 

239 

3 

5 

383 

2 

20 

296 

11 

14 

567 

2 

28 

310 

1 

2 

2 

2 

5 

268 

2 

6 

268 


10 

1 

481 

1 

4 

4 

10 

2 

481 

Sch. 

3 

575 

10 

4 

482 

5 

4 

402 

3 

17 

388 

2 

3 

268 

1 

7 

23 

1 

10 

93 

1 

15 

111 

2 

10 

269 

2 

25 

308 

2 

.26 

308 

2 

26 

308 

5 

4 

402 



























































INDEX TO CONSTITUTION OF TENNESSEE. x lvii 

O 

Art. Sec. Page. 

on trial and conviction. ft 5 402 

duration of. (See Term of Office.) 
age for. (See Age.) 

persons concerned in duels disqualified for. 9 3 48 O 

Officers, county, how filled. 11 17 573 

to furnish information to governor, when. 3 8 385 

vacant, governor may temporarily fill. 3 14 388 

county and district, who may vote for. 4 1 389 

civil, liab'e to indictment, to punishment. 5 5 402 

subject to punishment by law. 5 5 402 

appointed to fill vacancies, term of office of. 7 2 465 

election of, and filling vacancies of. 7 4 472 

executive, computation of term of. 7 5 475 

to hold until qualification of successor. 7 5 475 

militia, who to elect. (See Militia) . 8 .. 479 

of 1870, their term of office.Sch. 1 574 

appointed by courts, when to be appointed.Sch. 1 574 

other, when to vacate.Sch, 1 574 

holding until next general assembly, what.Sch. 1 574 

Officers, term of, first elected under Constitution. Sch. 1 574 

to take oath to support Constitution.Sch. 3 575 

Orders and resolutions. (See Bills.) 

Ordinances in former Constitution abrogated. 11 1 499 

consistent with this Constitution in force. 11 1 499 

Organization of corporations. 11 8 516 

laws for, altered or repealed. 11 8 516 

P 

Pardons, governor may grant. 8 6 384 

Peddlers may be taxed. 2 28 310 

Peers, judgment of, or law of land, necessary, when. 1 8 25 

People the, the source of power. 1 1 2 

offices filled by, or county court. 11 17 573 

secure from unreasonable searches and seizures. 1 7 23 

Peace, justices of, liable to indictments, etc. 5 5 402 

Perquisites forbidden. 1 22 227 

Political test, no, for office. 1 4 4 

jurors. 1 6 5 

Polls, may be taxed. 2 28 310 

Poll tax, who liable to. 2 28 310 

how counties and corporations may levy. 2 28 310 

to be appropriated to education. 11 12 560 

Population of new counties. 10 4 482 

Powers of government. 2 1 243 

departments. 2 2 243 

general, of the legislature. 2 12 270 

(See General Assevibly.) 

delegated, how guarded. 11 16 873 

Power, judicial, when vested. 6 1 40,> 

Preamble. 

Precinct, voting in may be required by law. 4 

Press, free. 1 132 

Priest, not eligible to legislature. 0 1 480 

Principal of school fund never to be diminished. 11 

Prisoners bailable... 

Prisons, erection and inspection of. 

Privilege hereditary, not to be granted. 1 30 239 

from arrest, members of assembly. 2 13 2/0 

of habeas corpus, when suspended. 

Privileges may be taxed. 2 28 

Private affairs, and local, courts may have power over. 11 

Proceedings, official of governor, registered. 3 17 388 

Proclamation, governor may convene general assembly by. 3 ' !) 386 



























































xlviii 


INDEX TO CONSTITUTION OF TENNESSEE. 


P 

Art. Sec. Page^ 

Process to run in name of State, and bear test and signature of clerk. 6 12 456 

Produce, manufactured, of the State, not to be taxed. 2 30 379 

Prohibition of slavery. 1 33 242 

Property, what liable to taxation. 2 28 310 

taken for public use, how. 1 21 206- 

personal, what exempt from taxation. 2 28 310 

escheated, may go to heirs, etc. . x .. 11 12 560 

Protest, members of legislature may. 2 27 308 

Prosecution, criminal... 1 9 64 

Punished, those concerned in duel to be. 9 3 480 

Punished, bribery to be. 10 3 481 

Punishment of disturbers of general assembly. 2 14 270 

by martial law. 1 25 230 

civil officers subject to, by law. 5 5 402 

parties convicted on impeachment subject to, by indictment, etc. 5 4 402 

Punishments, cruel and unusual not to be inflicted. 1 16 111 

Q 

Qualification for office, oath. 14 4 

no religious or political test. 1 4 4 

of juror, no religious or political test. 1 6 5 

Qualifications of representatives..".. 2 9 269 

senators.. 2 10 269 

governor. . 3 3 388 

of Supreme court judges.. 6 3 388 

electors. 4 1 389 

electors. 1 5 4 

Quartering soldiers. 1 27 239 

Quorum, legislature. 2 11 269 

R 

Railroads to be refused State bonds, when. 2 33 382 

Ranger, election and term of office of_•. 7 1 466 

removable for malfeasance or neglect. 7 1 465 

Rate of interest (See Interest) . 11 7 509 

Ratification of amendments to Constitution. 11 3 506 

Ratio of representation. 2 5 268 

Rebellion, cause for suspension of habeas corpus . 1 15 m 

Receipts and expenditures of public money to be published. 2 24 308 

Recommendations, governor to make. 3 n 387 

Record to be made of votes at elections in general assembly. 4 4 401 

removable by certiorari .’. 6 10 44 $ 

Reform of State Constitution. 11 3 506 

Refusal of district attorney to prosecute, attorney pro tem. appointed. 6 5 434 

Register to be made of votes at elections in general assembly. 4 4 401 

of governor’s acts, etc., secretary of State to keep. 3 17 388 

ayes and noes, when. 2 21 296 

Register, how elected and term of office. 7 1 466 

removal for malfeasance or neglect. 7 1 4 &> 

vacancy in office of, how filled. 7 2 466 

not to have seat in legislature. 2 26 308 

Rejected bill, not to be passed at same sassion. 2 19 336 

Religion, no establishment of. 1 3 4 

Religious test, no, for office. 1 4 4 

of jurors. 4 6 5 . 

sects certain, relieved from military duty. 8 3 479 

re 6 t day, no public service required on. 11 15 573 

Remedy by due course of law .. 4 47 443 

Removal of governor. 3 12 337 

of judges and attorneys for State. 6 6 437 

by impeachment. 5 4 4 q 2 

trial and conviction. '5 5 4 ^ 




























































INDEX TO CONSTITUTION OF TENNESSEE. 


xlix 


R 

Reporter of the State, appointment and term. 

when appointed. 

Reprieves and pardons, governor may grant. 

Representation, apportionment of. 

Representatives, qualification of (See Age.) . 

ineligible to what offices. 

form of oath to be taken by. 

duration of office of (See Term of Office) . 

districts, of what to consist. 

number of. 

apportionment of. 

election of, when and how often. 

to terminate same day. 

privileged from arrest, how far . 

for speech or debate, not to be questioned. 

Residence required of electors, one year in State. 

representative, one year in county. 

senator, three years in State, one year in county or district. 

judge of Supreme court five years in State. 

other judges, five years in State, one year in circuit or district. 

State district attorney, five years in State, one year in district or circuit.. 

Resignation of governor.*. 

Resolutions, joint, (See Bills.) . 

Resolve, members of legislature may protest against any. 

Retrospective laws, not to be made. 

Returns of election for governor. 

Rewards and punishments, future, disbeliever in disqualified. 

Right of admission into the Union as a State. ( Preamble.) . 

to alter, reform, or abolish government. 

of suffrage. 

of suffrage. 

of suffrage. 

electors at elections. 

assembling and addressing, etc... 

of free speech and press. 

to justice without sale, denial or delay. 

to keep and bear arms for common defense. 

navigation of Mississippi river inherent. 

Rights, bill of, excepted from governmental powers. 

vested, not to be interfered with. 

of property and action, not affected by this Constitution. 

of accused persons. . 

of worship and conscience. 

declaration of. 

bill of. 

Rules of Supreme court. 

each house to determine its own. 


S 

Sabbath, provisions respecting. 

Sale of lottery tickets prohibited... 

School fund, provisions respecting. 

to remain a perpetual fund... 

confined to support of common schools. 

Science, general assembly to cherish. 

Schools, State poll-tax to go to support of. 

Schools, public, white and negro children not to be mixed in 

Seal of State, governor to keep and use. 

Searches and seizures, unreasonable, prohibited. 

Secretary of State, how appointed. 

term of office, four years. 

duties of. 

liable to impeachment. 


Art. 

Sec. 

I’age. 

6 

5 

434 


•> 

575 

Q 

o 

6 

384 

2 

4 

268 

2 

9 

269 

2 

10 

269 

10 

o 

481 

2 

3 

268 

o 

5 

268 

2 

5 

268 

2 

4 

268 

2 

7 

268 

»> 

7 

268 

2 

13 

270 

2 

13 

270 

4 

i 

389 

•) 

9 

269 

»> 

10 

269 

6 

o 

o 

426 

6 

4 

127 

6 

5 

484 

3 

12 

387 

3 

18 

388 

2 

27 

308 

i 

20 

138 

3 

o 

383 

9 

2 

480 

. , 

, . 

1 

1 

1 

1 

1 

5 

4 

4 

i 

389 

4 

2 

401 

4 

3 

401 

1 

23 

230 

1 

19 

132 

1 

17 

113 

1 

26 

230 

1 

29 

239 

11 

16 

573 

11 

8 

516 

11 

2 

505 

1 

9 

552 

1 

3 

4 

1 


♦> 

1 


2 

6 

3 

426 

2 

12 

270 


11 

15 

573 

11 

5 

573 

11 

12 

560 

11 

12 

.560 

11 

12 

560 

11 

12 

560 

11 

12 

560 

11 

12 

560 

3 

15 

388 

1 

7 

23 

3 

17 

388 

3 

17 

388 

3 

17 

:588 

5 

4 

402 






























































to hold over until general assembly meets. 

Sections, when Supreme court may sit in two. 

Seizures and searches, unreasonable, forbidden. 

Senate to try impeachments. 

time of trial, after adjournment of legislature sine die 

Senators, term of office of. 

apportionment and number of. 

qualifications of. (See Age.) . 

ineligible to office, what and what not. 

compensation of, in impeachment cases. 

on oath in impeachment trials. 

two-thirds must concur to impeach. 

form of oath, to be taken by. 

Services for public use, how taken. 

Sessions, extra for legislature, convened by governor. 

to be confined to special business.. 

Service, public, not to be required ou day of rest. 

Sheriff, one elected in each county. 

ineligible two years out of eight. 

term and qualification of. 

vacancy in office of, how filled..-. 

to take oath to support the Constitution. 

Slavery prohibited. 

Soldiers, restriction on quartering. 

Sale, direct produce of, exempt from taxation. 

Speaker, each house to choose. 

Speaker of senate to be governor, when. 

open returns of election for governor. 

of house to be governor, when. 

Speakers, the, to sign bills. 

Special election for judge or district attorney, when. 

Special laws, not to be enacted, what. 

Special judges in cases of incompetency. 

Speech, freedom of, maintained. 

members of general assembly not to be questioned for. 

Staff of militia, who to appoint. 

State, right of admission as a ( Preamble.) 

State government formed in 1796, ( Preamble ) 

Siate convention, 1834. (Preamble.) 

State convention, 1870. ( Preamble.) 

boundaries of the, declared. 

credit uot to be loaned. 

not to own bank, or stock, etc. 

bonds to be refused to I’ailroads, when. 

judicial power of, where vested. 

State and county officers. 

Constitution of, oath to be taken to support. 

Statute of limitations, when not to be computed. 

Stockholder, how county, city or town may become a.. 

Stock, income from, when liable to taxation. 

Style of laws: “ Be it enacted,” etc.. 

Successor, to be elected and qualified before office vacated. 

Suffrage, right of. 

qualification for the. 

criminals may be excluded from the. 

Suicides, estate of, to descend, how. 

Suits against the State. 

Summons, freedom from, at elections. 

Supreme court. (See Court , Supreme, Judges.) 

Sureties, prisoners bailable by sufficient. (See Bail) . 

Suspension of habeas corpus . 


Art. 

Sec. 

Page. 

Sell. 

1 

574 


2 

575 

1 

7 

23 

5 

2 

402 

5 

3 

402 

o 

3 

402 

2 

G 

268 

2 

10 

269 

2 

10 

269 

2 

23 

307 

5 

2 

402 

5 

2 

402 

10 

2 

481 

1 

21 

205 

3 

9 

386 

3 

9 

386 

11 

15 

573 

7 

1 

465 

7 

1 

465 

7 

1 

465 

7 

2 

465 

. Sch. 

3 

575 

1 

33 

242 

1 

27 

239 

2 

28 

319 

2 

11 

260 

3 

12 

387 

O 

O 

2 

383 

3 

12 

387 

2 

18 

296 

7 

5 

475 

ii 

8 

516 

6 

11 

451 

1 

19 

132 

2 

13 

270 

8 

2 

479 


1 

31 

240 

o 

31 

382 

2 

31 

382 

2 

33 

382 

6 

1 

405 

7 

1 . 

465 

10 

1 

481 

Sch. 

4 

576 

2 

29 

335 

2 

2S 

310 

2 

20 

296 

7 

5 

475 

1 

5 

4 

4 

1 

389 

4 

2 

401 

1 

12 

110 

1 

17 

113 

4 

Q 

D 

401 

1 

15 

111 

1 

15 

111 


























































INI)EX T<) CO X ST ITETK) X OF TEX XESS E E. 


li 


T 

Art. Sec. Page. 

Tax, merchants, peddlers and privileges, incomes, polls. 2 28 310 

county and corporation. 2 29 335 

home produce manufactured, exempt from. 2 30 379 

poll, must be paid before voting. 4 1 389 

to be levied on all male citizens. 4 1 389 

for educational purposes. 11 12 560 

Taxation, what property liable to, or exempted from. 2 28 310 

equal and according to value of property. 2 28 310 

Tennessee, State of, boundaries of. 1 31 240 

great seal of. 3 15 388 

writs and process to run in name of. 6 12 450 

Terms of office, of senators and representatives, two years. 2 3 268 

of governor, two years. 3 4 383 

judges of Supreme court, eight years. 6 3 426 

other judges, eight years. 6 4 427 

attorney general and reporter, eight years. 6 5 431 

district attorney, eight years. 6 5 431 

clerk of Supreme court, six years. 6 13 458 

clerk and master in chancery, six years. 6 13 458 

clerks of inferior courts, four years. 6 13 458 

justices of peace, six years; constables, two years. 6 15 461 

sheriffs and county trustees, two years. 7 1 465 

coroner and rangers, two years. 7 1 465 

registers, four years. 7 1 465 

State treasurer and comptroller, two years. 7 3 471 

secretary of State, four years. 3 17 388 

how computed. 7 5 475 

officers elected in 1870.Sell. 1 574 

Te«t, no political or religious, to be required for office. 14 4 

from jurors required. 1 6 5 

Tickets, lottery, sale of prohibited. 11 5 507 

Time of electing senators and representatives. 2 7 268 

meeting of general assembly. 2 8 269 

holding election for judicial and other civil officers. 7 5 475 

excepted from statute of limitations.Sch. 4 576 

Title of bills, to express the subject.. 2 17 271 

Towns, credit of, how loaned. 2 29 335 

incorporated, additional justices for.•. 6 15 461 

county, districts, to elect three justices and two constables. 6 15 461 

Towns, incorporated, may be authorized to impose taxes. 2 29 335 

Transcript of record may be removed by certiorari . 6 10 448 

Treasurer, State, appointment and term of office. 7 3 471 

to hold over until general assembly meets.Sch. 1 574 

liable to impeachment. 5 4 402 

Trial by jury, right of. 1 6 5 

of cases where judge is incompetent. 6 11 451 

by judge appointed by governor, when. 6 11 451 

Trustee, one to be elected in each county, his term. 7 1 465 

Removal for malfeasance. 7 1 465 

vacancy, how filled. 7 2 465 

Truth, may be given in evidence in libel cases. 1 19 132 

U 

Unreasonable searches and seizures. 1 7 23 

Uniform, taxation must be. - 28 310 

Universities, laws in favor of, not to be interfered with. 11 12 560 

United States, oath to support Constitution of. 10 1 481 

officers not eligible for governor. 3 13 388 

judges not to hold office under. 6 7 438 

constitutional amendments, when to be acted upon. 2 32 382 

militia in service of, governor not to command. 3 5 383 





























































Hi INDEX TO CONSTITUTION OF TENNESSEE. 

V 

Art. Sec. Page. 

Vacant appointments, how filled. 3 14 388 

offices made, by the Constitution.Sch. 1 574 

Vacancy of governor’s office, how filled. 3 12 387 

sheriff, trustee, register, or elected clerk, how filled. 7 2 4(i5 

term of officers appointed to fill. 7 2 465 

by removal from district. 6 15 461 

Vacancies in legislature, how filled. 2 15 270 

of offices, how filled. 7 4 472 

period for which filled. 7 5 475 

which to be filled at biennial election . 7 5 475 

Vacation by failure to take oath.Sch. 3 575 

Value, property to be taxed according to its. 2 28 310 

Vested rights, not to be interfered with . 11 8 516 

Virtue essential to republican institutions. 11 12 560 

Vote, receiving bribe for, to be punished. 10 3 481 

of citizens included in new county. 10 5 483 

to be taken on loan of credit. .. . 2 29 335 

tie, for governor, how decided . 3 2 383 

Voters, enumerations of. 2 4 268 

qualifications of. 4 1 389 

“ “ . 15 4 

must pay poll tax. 4 1 389 

liable to military duty. 4 1 389 

may be required to vote in their precinct. 4 1 389 

criminals may be excluded from being. 4 2 401 

free from arrest and summons at elections. 4 3 401 

shall vote by ballot. 4 4 401 

two-thirds to consent to change county or seat of justice. 10 4 482 

(See Electors.) 

Vouchers to be laid before general Assembly. 3 17 388 

W 

Warrants, general, dangerous to liberty. 1 7 23 

White and colored persons, marriage, etc., prohibited. 11 14 567 

children, not to be received in same school. 11 12 560 

Widow, homestead exemption in favor of. 11 11 554 

Worship, right of. 1 3 4 

Writ of certiorari, judges or justices may issue. 6 10 448 

Writs to run in name of State. 6 12 456 

bear test and be signed by clerk. 6 12 456 







































Constitution of Tennessee, 


1870 . 


PREAMBLE AND DECLARATION. 

Whereas, The people of the territory of the United States 
south of the River Ohio, having the right of admission into 
the General Government as a member State thereof, consistent 
with the Constitution of the United States, and the act of cession 1 
of the State of North Carolina, recognizing the ordinance for the 
government of the territory of the United States northwest of 
the Ohio River, by their delegates and representatives in conven¬ 
tion assembled, did, on the sixth day of February, in the year 
of our Lord, one thousand seven hundred and ninety-six, ordain 
and establish a Constitution, or form of government, and 
mutually agreed with each other to form themselves into a 
free and independent State by the name of the State of Ten¬ 
nessee; and, [Above substantially same as in Const. 1796.] 

Whereas, The General Assembly of said State of Ten¬ 
nessee (pursuant to the third section of the tenth article of the 
Constitution), by an act passed on the twenty-seventh day of 
November, in the year of our Lord, one thousand eight hundred 
and thirty-three, entitled “An act to provide for the calling of a 
convention,” passed in obedience to the declared will of the 
voters of the State, as expressed at the general election of 
August, in the year of our Lord, one thousand eight hundred 
and thirty-three, did authorize and provide for the election, by 
the people, of delegates and representatives, to meet at Nashville, 
in Davidson County, on the third Monday in May, in the year 
of our Lord, one thousand eight hundred and thirty-four, for 
the purpose of revising and amending, or changing the Constitu¬ 
tion; and said convention did, accordingly, meet and form a 
Constitution, which was submitted to the people, and was 
ratified by them on the first Friday in March, in the year of our 
Lord, one thousand eight hundred and thirty-five; and, 

Whereas, The General Assembly of said State of Tennessee, 
under and in virtue of the first section of the first article of the 
Declaration of Rights, contained in and forming a part of the 
existing Constitution of the State by an act passed on the fifteenth 
day of November, in the year of our Lord, one thousand eight 
hundred and sixty-nine, did provide for the calling of a conven¬ 
tion by the people of the State, to meet at Nashville, on the 
second Monday in January, in the year of our Lord, one thousand 
eight hundred and seventy, and for the election of delegates for 
the purpose of amending or revising the present Constitution, 
or of forming and making a new Constitution; and, 

Whereas, The people of the State, in the mode provided by 
said act, have called said convention and elected delegates to 
represent them therein; now, therefore, 

We, the delegates and representatives of the people of the 
State of Tennessee, duly elected, and in convention assembled, 
in pursuance of said act of assembly, have ordained and estab¬ 
lished the following Constitution and form of government for 
this State, which we recommend to the people of Tennessee for 
their ratification; that is, to say: [Entire preamble and declaration 
substantially same as in Const. 1834.1 


>8, 251; 9, 3. 




ARTICLE I. 


DECLARATION OF RIGHTS. 

People and Goternhent—Inherent Power. 


PAGE. 


PAGE. 


Deeds—Stamps—Acts of Congress Relating 
to—Sovereignty of the State—Inter¬ 
nal Regulations. 


Government—Right of to Regulate its own 
* Concerns. 


People—Voice of, Must he Consistent With 

the Constitution. 

3 Railroad Employees—Observance of Statu¬ 
tory Precautions by—Police Power. 

2 


3 


2 


Article 1, Section 1. That all power is inherent in the 
people, and all free governments are founded on their authority, 
and instituted for their peace, safety, and happiness; for the 
advancement of those ends they have, at all times, an unalienable 
and indefeasible right to alter, reform, or abolish the government 
in such manner as they may think proper. [Same as Const. 1834, 
art. 1, sec. 1; Const. 1796, art. 11, sec. 1.] 

Art. 1, Sec. 2. That government, being instituted for the 
common benefit, the doctrine of non-resistance against arbitrary 
power and oppression is absurd, slavish, and destructive of the 
good and happiness of mankind. [Same as Const. 1834, art. 1, sec. 2; 

Const. 1796, art. 11, sec. 2.] 

Right of Independent Government to Regulate Its Own Concerns.— 
Whyte, J.: “It is certainly a correct proposition, not only in theory, 
but proved by constant practice, that every independent community 
or government has the right to regulate its own concerns; to make 
what laws it pleases; to abrogate and repeal existing laws heretofore 
made, and enact new ones respecting the same matters. The Constitution 
of North Carolina, in the preamble and first section, and her Declaration 
of Rights, sections 1 and 2, adopted December 17 and 18, 1776, declared 
this; and the Constitution of Tennessee, in its preamble and article 1, 
sections 1 and 2, adopted February 6, 1796, did the same. Hence, it is 
the power of these sovereign States, declared in and pursuant to their 
Constitutions and Declarations of Rights acted upon in practice from the 
time of making them in their respective legislatures, and the laws so 
made, that is to give the rule or rules governing the present case, and 
not the power of the canon law, the common law of England, or the law 
of any other community or country whatever.” 9,179. Bashaw v. The 
State. 1829. 

The Voice of the People Must be Consistent with the Constitution.— 
Peck, J.: “When one of the kings of England wished to confer with 
the judges touching a case to come before them, \ he was refused 
admittance. If, in this country, it be conceded that all power is 
inherent in the people, and their voice is heard through the legislature, 
their voice must be consistent with the Constitution and that general 
law of the land which is made to reach all alike; and whenever judges 






pioople, government, power. 


3 


in this country can not stand up as firmly and independently before the 
people as the judges of England did before their sovereign, then there 
is an end of the administration of law, and a reign of terror at hand.” 
14, 120. 1 Fisher’s Negroes v. Dabbs et al. 1834. 

Observance of Statutory Precautions by Railroad Employees — Police 
Power.— With reference to sections 1167 and 1168 of the 2 Code of 
1858, Smith, J., said: “These sections are not invalid for want of 
constitutional or sovereign power in the legislature to enact the law 
expressed by them. The statute is founded on a policy of double aspect 
— one to guard and protect the safety of the general public, and the 
other, to compensate the injured person, which has sanction in what is 
called the police power of the government.” 46, 50. L. & N. B. R. Co. 
v. Burke. 1868. 


Sovereignty of the State — Power of Congress — Internal Regula¬ 
tions.— Turney, J.: “Upon the question of the sufficiency in amount of 
the stamps affixed to the deed, if the Acts of Congress declaring ‘that it 
shall not be lawful to receive any instrument, document or paper 
required by law to be stamped, unless stamps of the proper amount 
shall have been affixed and cancelled, and declaring such instruments 
void, and that they shall not be used in evidence, is the law/ then this 
deed in trust is void. The several States of the Union became entitled 
on the 4th of July, 1776, to all the rights and powers of sovereign 
States, as respects their internal regulations. Mcllvaine v. Cox, 4 Cr., 
209. The States are sovereign within their own limits, and foreign to 
each other, regarding them as local governments. Bank U. S. v. Daniel, 
12 Pet., 33. The rights of the crown devolved on the States by the 
Revolution, and were confirmed to them by their treaty of peace in 
their sovereign capacity. Bald., 60. The provision of U. S. Stat. of 
1866, that no document not duly stamped, shall be used as evidence in 
any court, until the requisite stamps shall have been affixed thereto, 
applies only to the courts of the United States. Carpenter v. Snelling, 
97 Mass., 452; Lynch v. Morse, Id., 458. The courts of the States do 
not exist by the authority of the United States, or by its permission, and 
are not objects over which its sovereign power extends, except, per¬ 
haps, for the purpose of protection. It does not possess over them 
even the incidental power of taxation. The people of the State possess 
all the powers of their original unlimited sovereignty, except such as 
have been delegated by them to the Government of the United States, 
or are prohibited to the States by the Constitution. Union Bank v. 
Hill et al. 

‘See same ease, art. 1, sec. 17. 


2 T. & S., 1167, 1168; M. & V.. 1299, 1300. 


4 


TENNESSEE CONSTITUTIONAL LAW. 


“There has been no delegation by the States to Congress, of power 
or authority to legislate for the internal regulation of the States, nor are 
the people of the States prohibited by the Constitution from creating 
and regulating the courts of the States and declaring the rules for their 
government. The legislature of the State is the only power which can 
enlarge or contract the rules of evidence or create and enforce new 
rules in the courts of the State. If Congress may, by its enactments, 
make or change the rules of evidence as applicable to the courts of the 
States in any one particular, it may in all things. It may totally abolish 
existing rules of evidence and practice and substitute others new and 
wholly different. If it may say what shall and shall not be a muniment 
of title, as it has proposed to do in the acts in review, it may as well 
prescribe the qualification for officers of the State, created by the leg¬ 
islature of the State. In short, there is no limitation to its powers of 
legislation for the States, for each, according to its political complexion, 
and the favor or disfavor of Congress. From such congressional inter¬ 
ference, consolidation and centralization must ensue, the rights of the 
States be destroyed and their sovereignty exist only in history.” 1 48, 
637. Sporrer v. Eijler et al. 1870. 

Art. 1, Sec. 3. That all men have a natural and indefeasible 
right to worship Almighty God according to the dictates of their 
own conscience; that no man can of right be compelled to 
attend, erect, or support any place of worship, or to maintain 
any minister against his consent; that no human authority can, 
in any case whatever, control or interfere with the rights of 
conscience; and that no preference shall ever be given by law to 
any religious establishment or mode of worship. —[Same as Const. 

1834, art. 1, see. 8; Const. 1796, art. 11, sec. 3.] 

Art. 1, Sec. 4. That no political or religious test, (other 
than an oath to support the Constitution of the United States 
and of this State,) shall ever be required as a qualification to any 
office or public trust under this State.— [Except line in parenthesis 
this section same as Const. 1834, art. 1, sec. 4, and Const. 1796, art. 11, sec. 4. 

Art. 1, Sec. 5. That elections shall be free and equal; and 
the right of suffrage, as hereinafter declared shall never be denied 
to any person entitled thereto, except upon a conviction by a jury 
of some infamous crime previously ascertained and declared by 
law, and judgment thereon by a court of competent juris¬ 
diction. —[Const. 1834, art. 1, sec. 5, and Const. 1796, art. 11, sec. 5 provided 
only, “ That elections shall be free and equal.” 


1 See 52 , 688. 



TRIAL BY JURY. 


THE RIGHT OF TRIAL BY JURY. 


Law In General. 

PAGE. 


Objects of this Clause—Limitations upon 

Judges and Legislatures. 5 

Prosecutions by Common Law Made Secure 

by this Section and Art. 1, Sec. 14 .. 7 

Constitution a Warrant of Authority Bind¬ 
ing Each Department of Govern¬ 
ment—Precedents—Danger of Fol¬ 
lowing Them. 19 

Construction—Rules of—Magna Cliarta_ 7 

Statute—Only Part May be Void. 17 

How Far This Right Extends. 5 

When Taken Away. 19 

In Criminal Cases. 

Criminal Proceedings—Strictness in. 5 

Evidence—Proof of Certain Facts Enumer¬ 
ated in Act of 1895, ch. 67. 12 

Jury Composed of Less than Twelve. 12 

Misdemeanors—Recorders of Towns—Pen¬ 
alties—Warrant. 12 

Misdemeanors—Application of Art. 1, Sec. 

14, to These Offenses—Putting De¬ 
fendant to Answer. 7 

Murder—Verdict Must Find Degree—Jurors 

—Locality . 5 

Small Offense Law Constitutional. 7 


In Civil Cases. 

PAGE. 

Circuit Court—Jurisdiction over Bastardy 


Cases-Old and New Laws. 12 

Garnishment—Summary Remedies Against 

Public Officers.. 14 


Jurors—Compensation of—Taxing Losing 

Party with Costs—Act of 1875 Void. 17 
Jury—Demanding Same in First Pleadings 

Tendering Issue—Waiving Jury.. 18 
Jury—Demanding Same on First Day of 
Term—Acts of 1875 and 1889 Consti¬ 
tutional. 19 

Jury—Third Verdict of—Court Shall Not 
Set Aside. See Art. 1, Sec. 8, Rail¬ 
road v. Mahoney. 

Justices — Jurisdiction —Acts Conferring. 

See Art. 6, Sec. 1, Thompson v. Gibson. 
Justices—Jurisdiction—Acts Increasing. .14, 16 


Motion—Against Surety—Proof. 14 

Motion—Judgment for Money By, With and 
Without Notice—Regulation of. See 
Art. 1, Sec. 8, Tipton v. Harris. 

Non-Suit—Power of Judge to Direct. 17 

Pleadings—Amendment of. 18 

In Equity Cases. 

Chancery Court—Act Referring Certain 

Parties to, Unconstitutional. 19 

Chancery Court—Jurisdiction—Increase of. 

See Art. 6, Sec. 1, Jackson v. Nimmo. 


Art. 1, Sec. 6. That the right of trial by jury shall remain 
inviolate, and no religious or political test shall ever be required 

as a qualification for jurors. 1 — [Const. 1834. art. 1, sec. 6, and Const. 1796 , 
art. 11, sec. 6 provided only, “That the right of trial by jury shall remain 
inviolate.” 

How Far this Right Extends.— Ill this case SMITH, J., held: “The 
proper and settled construction of” this provision “is, that the right 
shall remain inviolate as it existed at the formation of the Constitution. 
Cases, which, before the Constitution, were not triable by a jury, need 
not be made so now. Parties cannot now be deprived of a trial by jury, 
who could demand it at and before the formation of the Constitution; 
cases npt having the right, at that time, to demand a jury, cannot now, 
as of right, because of this constitutional provision.” 46,382. 2 Trigally 
v. Mayor etc. of Memphis. 1869. 


In Criminal Cases. 

This Clause a Limitation Upon Legislatures and Judges — Calling 
of Jurors — Locality Important — Strictness in Criminal Proceedings — 
Murder — Verdict Must Find the Degree. —P EC K, J.: “As the offense of 
murder in the first degree must be brought within the statute, to justify 


1 33, 441; 91, 625. 


2 See same case, art. 1, sec. 8. 
























6 


TENNESSEE CONSTITUTIONAL LAW. 


the judgment of death, and as all other kinds of murder shall be deemed 
murder in the second degree, we have not in this record the means of 
distinguishing which of the two offenses has been committed, and this, 
by the ^ct, it is made the duty of the jury to find ‘in their verdict/ 
specifying the degree of guilt. The finding is no more certain than if 
the defendant had confessed his guilt, in which case it is made indispens¬ 
able to empanel a jury to find the degree of the crime. It is not shown 
in the record that the traverse jury were good and lawful men; they are 
called and sworn, but it is not shown that they were persons qualified to 
serve. In latter times, in this court, I have stood alone in requiring 
strictness in the proceedings on the criminal side of our courts. I will 
not say that I regret having been so often overruled. The country will 
regret it, and they have power to set the matter right. When the ques¬ 
tion on captions to indictment was raised, and it became convenient to 
overrule what Judge Haywood and myself had decided, the grounds on 
which it was done, and the authority to authorize the doing of it, has 
barely been glanced at in some of the opinions. Records in cases long 
since determined were produced and compared with those before us, 
and the judges doing it measured his science in criminal law by that 
standard, and held, no doubt upon a principle purely republican, that all 
persons should stand upon the foot of equality; that, others having 
been condemned under rules so relaxed, these should also share the 
same fate. For my part, I thought love of, and respect for, the Consti¬ 
tution of my country was a better test to prove the integrity of the 
judge, and I based myself upon it. The clause in the Bill of Rights, 
‘that the right of trial by jury shall remain inviolate/ was omnipotent 
with me. This clause was put in the Constitution as a limitation upon 
legislatures and judges — a landmark by which men should be safe, in 
the journey of life, from the besetments that might have been intruded 
upon them without the clause. With this clause, and it adhered to by 
the courts, where was the room to relax? The legislature could not 
fritter away this right of freedom, by giving us new rules not in accord¬ 
ance with the Constitution. No sheriff who summoned the jury had it 
in his power to save the life of one man, and destroy that of another, 
by his selection of a jury. No! The clause was made for the time 
being, and was unalterable by legislative enactment, or by any rule of 
decision of this court. The provision points us to the law as it then 
stood, touching the trial by jury, and said that right shall remain invio¬ 
late. Strange that we should stand up so close to the provisions which 
declare that no ex post facto law shall be made, or the writ of habeas 
corpus suspended, and so entirely lose sight of the other provision. 
Who is so dull as not to know that the persons to be called as jurors, 
the calling of them, the place they were to come from, their selection 


T.&S., 4600; M. & V., 5351. 



TRIAL BY JURY. 


7 


and oath, make parts in the trial by jury. Dispense with any one 
requisite, and where will we stop? In England, in the time when Sydney 
and Russell were tried, the rules were all well enough; but the heat and 
ferment of the times relaxed the rules, the judge became untrue to his 
trust, and men were destroyed. Our forefathers saw that, and wisely 
provided against it in our Constitution. I should think I gave but 
a poor evidence of my integrity, to fume and rant about a violation of 
the Constitution in a matter merely affecting a few dollars, and then be 
silent where a similar violation affected liberty or life. I can not do it; 
and, however much I may respect the opinions of others upon rules of 
property depending upon opinions of judges upon statutes or common 
law, I have no compromise to make where my mind is fully satisfied 
upon the plain letter of the Constitution. The point is expressly made, 
and I feel myself bound to repeat my opinion 1 upon it.” 15, 266. 
Kirby v. The State. 1834. 


This Section Considered in Connection with Art. 1, Sec. 14—Design 
of Both to Secure Common Law Mode of Prosecutions — Magna Charta — 
Rules of Construction—Due Process of Law— TJ. S. Constitution, Art. 5 
— Once in Jeopardy — Small Offense Law Constitutional. —The plaintiff 
in error was indicted, tried and convicted at April term, 1848, of the 
Circuit court of Grainger county, of an assault and battery upon one 
John Dalton. Upon being arraigned the defendant, in the court below, 
pleaded in bar to the indictment a former trial and conviction for the 
same offense before a justice of the peace, pursuant to the act entitled 
“ 2 An Act for the punishment of small offenses,” passed January 10, 
1848. To this plea of the defendant the attorney general demurred, 
and, on argument, the demurrer was sustained upon the ground that the 
act was unconstitutional and void, and that, therefore, the former trial 
and conviction, under its provisions, formed no bar to this prosecution; 
and the court proceeded to render judgment upon the demurrer, that 
the defendant for the offense charged in said indictment be fined the 
sum of two dollars and fifty cents (the magistrate had fined him two 
dollars) and costs. From this judgment the defendant appealed in 
error. 

McKinney, J. : “ It is argued by the attorney general that the first 
section of the act in question violates alike the sixth and fourteenth 
sections of the Declaration of Rights. ... It will be observed,, 
in the first place, that the fourteenth section . . . relates only 

to the mode of prosecution or formal accusation of offenders. And we 
are not prepared to hold that its prohibition includes, or at all applies 

»AI1 the judges concurred in a reversal of the judgment; but Green, with whom Catron con¬ 
curred, did not discuss the above features of the ease, and it does not appear what views they 
entertained in this respect. 

a Code 1858, 4994 ; T. & S., 4994 ; M. & V., 5819. 



8 


TENNESSEE CONSTITUTIONAL LAW. 


to, prosecutions for mere misdemeanors. With a view to this question, 
let us inquire how the law of England stood upon this subject, at the 
time of the American Revolution, in order to ascertain what law, in 
relation to the prosecution of offenses, our ancestors brought with them 
to this country as a part of their ‘birthright and inheritance. 7 For we 
apprehend the rule that statutes are to be construed in reference to the 
principles of the common law is alike applicable to a provision of the 
Constitution, or fundamental law, and for the same reason that the 
framers of the law in either case are not to be presumed to have 
intended to make any change or innovation upon the common law 
further than is expressly declared. 

“ The provision of the fourteenth section is, in substance, borrowed 
from Magna Charta, as are also the provisions of several other sections 
of the Declaration of Rights. The great charter, ch. 29 (9 Henry III) 
declares that ‘no freeman shall be taken or imprisoned, or be deprived 
of his freehold, or free customs, or be outlawed, or exiled, or any other¬ 
wise destroyed; nor will we pass upon him, nor condemn him, but by 
lawful judgment of his peers, or by the law of the land. 7 2 Inst., 45. 
And in his exposition of the meaning of the words, ‘but by the law of 
the land, 7 in the foregoing chapter, Sir Edward Coke says: ‘For the 
true sense and exposition of these words, see the statute of 37 Edward 
III, ch. 8, where the words “ by the law of the land 77 are rendered without 
due process of law, for there it is said, though it be contained in the 
great charter that no man be taken, imprisoned, or put out of his free¬ 
hold without process of the law— that is, by indictment, or presentment 
of good and lawful men, where such deeds be done in due manner, or 
by writ original of the common law, without being brought in to answer 
but by due process of the common law. 7 2 Inst., 50. And, according 
to the same author, ‘this chapter is but declaratory of the old law of 
England. 7 

“What, then, was the common-law mode of prosecution? Black- 
stone, in his Commentaries (4th vol., 301), informs us that ‘this is either 
upon a previous finding of the fact by an inquest or grand jury, or 
without such previous finding. The former way is either by present¬ 
ment or indictment. 7 The mode of prosecution, without a previous 
indictment or presentment by a grand jury ‘to fix the authoritative 
stamp ot verisimilitude upon the accusation, 7 is that of information. 
Id., 307, 308. Informations, exhibited in the name of the king, are of 
two kinds: first, those properly his own suits, and filed ex officio by the 
attorney general; and, second, those in which, though the king is 
nominal prosecutor, are yet at the relation of some private person. 
The objects of the latter are ‘and gross and notorious misdemeanors, 
riots, batteries, libels, any other immoralities of an atrocious kind. 7 
And when an information of either kind was filed, it was tried by a petit 


TRIAL BY JURY. 


9 


jury of the county where the offense arose. And this mode of prosecu¬ 
tion, according to the learned commentator, is as ancient as the common 
law itself. Id., 309. ‘But these informations are confined, by the con¬ 
stitutional law of England, to mere misdemeanors only; for, whenever 
any capital offense is charged, the same law requires that the accusation 
be warranted by the oath of twelve men, before the party shall be put 
to answer it.' Id., 310. From this brief view of the usual manner of 
prosecuting offenders at common law, it appears that, for mere misde¬ 
meanors, persons might be put to answer without presentment or indict¬ 
ment previously found by a grand iury; and that it was only for ‘crimes 
in the proper sense of that term, or felonious offenses, that it was indis¬ 
pensable that the accusation should be warranted by the finding of a 
grand jury, before the offender could be put to answer. When our 
ancestors removed to America they brought with them this privilege, as 
part of the common law, and it has been incorporated, in substance, 
into the Constitution of the United States, and perhaps all our State 
Constitutions. The fifth article of the Amendments to the Federal 
Constitution declares that ‘no person shall be held to answer for a 
capital or otherwise infamous crime, unless on a presentment or indict¬ 
ment of a grand jury, except in cases arising in the land or naval 
forces, or in the militia, when in actual service, in time of war, or public 
danger.' 

“In commenting upon this article, Mr. Justice Story says: ‘The first 
clause requires the interposition of a grand jury, by way of presentment 
or indictment, before the party accused can be required to answer any 
capital and infamous crime charged against him. And this is regularly 
true, at the common law, of all offenses above the grade of common 
misdemeanors.' Commentaries on Const., vol. 3, sec. 1778. The phrase 
‘criminal charge,' in the fourteenth section of our Declaration of Rights, 
must be taken to have been used in its proper and technical sense. 
Such is the rule of construction in reference to statutes, unless it clearly 
appears that the words were intended to be applied differently from 
their ordinary legal acceptation. The terms ‘crime and misdemeanors,' 
in their legal signification, are descriptive of offenses of different and 
distinctive grades. ‘ In the Euglish law misdemeanor is generally used in 
contradistinction to felony, and misdemeanors comprehend all indictable 
offenses which do not amount to felony.' 4 Bla. Com., uote 3, by Chris¬ 
tian. It can not, for a moment, be supposed that the term ‘criminal 
charge' was intended to comprehend or apply to misdemeanors, because, 
by the common law, as well as by statutory euactments in North Caro¬ 
lina, in force in this territory at the adoption of our Constitution, and 
still in force, numerous offenses of the grade of misdemeanors were sum¬ 
marily tried and punished, without presentment or indictment, by a 


10 


TENNESSEE CONSTITUTIONAL LAW. 


single magistrate, as in cases of drunkenness, profane swearing, Sab- 
bath-breaking, vagrancy, and others that might be enumerated. 

“ We incline to the opinion that the sixth and fourteenth sections 
of the Declaration of Rights were merely designed to secure the mode 
of prosecution in cases of felony, and of the trial by jury, as they 
respectively existed at the common law. The fact that the practice 
had been, in North Carolina, and has continued to be in this State, to 
prosecute misdemeanors, not upon information, but by presentment or 
indictment, weighs nothing in settling the true meaning of the constitu¬ 
tional provision in question; because the object of this provision was 
not to forbid the prosecution of misdemeanors by the finding of an 
indictment or presentment by a grand jury, nor does it forbid this, but 
to guarantee to every freeman the great privilege and security of not 
being put to answer any criminal charge affecting the right to life or 
liberty without a written accusation, previously verified by the oath of 
a grand jury, in the form of a presentment or indictment. . . . 

“ Conceding, for the sake of the argument, that the fourteenth sec¬ 
tion of the Declaration of Rights applies to misdemeanors, is either the 
provision of this, or of the sixth section, violated by the act in question? 
The first section provides ‘that any person brought before a justice of 
the peace for any misdemeanor may plead guilty. Whereupon the 
justice shall hear evidence, and fine the offender, according to the aggra¬ 
vation of his offense, not less than two dollars, and not exceeding fifty 
dollars, together with the costs.’ The fifth section directs 1 that if the 
offense merit a fine exceeding fifty dollars, or imprisonment and fine of 
any amount, or imprisonment alone, or if the offense is punishable 
expressly by both fine and imprisonment, the justice shall not render 
judgment against the offender, but shall proceed as usual.’ And by the 
twenty-second section is provided that ‘if any person proceeding under 
this act abuse or exceed his power, or exercise power not granted, the 
injured party by written petition, alleging the grievance, and verified by 
his, or his agent’s affidavit, and addressed to the circuit judge of the 
county in which the proceeding is had, shall have a writ of supersedeas 
and certiorari granted by any circuit judge, by which the proceeding 
shall be transferred to the Circuit court of the county, and be there deter¬ 
mined as though nothing had been done under this act.’ We confess 
ourselves utterly unable to perceive how either of the sections of the 
Declaration of Rights referred to is, in the slightest degree, infringed by 
any one of the provisions of the foregoing act, or that they are, in any 
respect, incompatible with each other. How does this act ‘put the 
defendant to answer’ without his consent; or, how, without his consent, 
deprive him of a trial by jury, as is the true import of the prohibitions 
contained in the two sections of the Bill of Rights in question? When 
brought before the justice upon warrant, if of sufficient legal discretion 


TRIAL BY JURY. 


11 


to be ameuable to the law for his offense, and left to the exercise of his 
own volition, why may he not be permitted, in order to escape the delay 
and expense of a formal prosecution in the Circuit court, to submit to a 
mere tine, and thereupon be discharged? There is nothing compulsory 
in the act. The privilege is for the ease and benefit of the defendant. 
It is at his election whether to avail himself of it or not. The justice can 
not move a step under the act unless the defendant prays the benefit 
thereof. The proposition that the privilege secured to defendants by this 
act is a violation of any constitutional right is scarcely worthy of serious 
discussion. It involves the palpable absurdity that a party is deprived 
of a right which he voluntarily waives or surrenders. Has it not been 
the every-day practice in the Circuit courts for defendants, bound over 
to answer for misdemeanors, to plead guilty and waive a trial by jury, 
and this not unfrequently, even before the finding of an indictment? And 
who ever supposed that the judge, in yielding to the prayer of the defend¬ 
ant in such case, was violating the Constitution, and depriving the 
defendant of a right secured to him? In the case under consideration, 
we take it, his honor, the circuit judge, who rendered judgment against 
the defendant upon the demurrer, never suspected that he was violating 
the constitutional rights of the defendant, although he was deprived of 
a trial by jury, and that, too, upon a mere fiction of law, not by his own 
consent. The numerous cases of summary trial and conviction, before 
alluded to, have never been regarded as in violation of the Constitution. 

The power of the justice is so guarSed and circumscribed as 
to secure the defendant from any serious injury. And he has it in his 
power, in case of the least excess or abuse of the discretion conferred 
upon the justice, to avoid the proceeding altogether, by having the case 
transferred to the Circuit court. With the wisdom or policy of the act, 
we have nothing to do; our duty is confined to the determination of the 
question, whether it be or be not constitutional; and this question, we 
think, admits of no doubt. . . . 

“But there is another ground upon which this proceeding was wholly 
unwarranted—all other questions aside. Supposing the act to be utterly 
unconstitutional and void, to every intent and purpose, still, if the State, 
by whose sanction it was enacted, has treated it, in this instance at 
least, as a valid and constitutional law, and has, under its forms and by 
its authority, caused the plaintiff in error to be tried, convicted and 
punished, and the conviction has been acquiesced in and remains in 
force, upon what principle or authority is it that the State shall be per¬ 
mitted to treat such trial and conviction as a nullity, and demand a 
second trial, conviction, and punishment of the individual in another 
tribunal for the same identical offense? The defendant, whose rights 
were invaded, according to the argument of the attorney general, might 
have refused to submit and have demanded a legal trial, but he did not 


12 


TENNESSEE CONSTITUTIONAL LAW. 


do so; and surely a second prosecution, at the instance of the State, 
would be as much putting the offender twice in jeopardy, and twice 
inflicting punishment for the same offense, as if the first conviction and 
punishment had been under a constitutional and valid law. The State 
is estopped to demand such second prosecution.” 28, 47. McGinnis 
v. The State. 1848. 

Jury Composed of Less than Twelve. —McKlNNEY, J., held that “A 
trial by a jury composed of less than twelve in number, in a criminal 
case, is a nullity.” 37, 361. Bowles v. The State. 1858. 

Misdemeanors—Recorders of Towns — Criminal Jurisdiction — Penal¬ 
ties—Warrant.— McFarland, J., held that “ Misdemeanors are not 
within the meaning of the fourteenth clause of the Bill of Rights, ordaining 
that no person shall be put to answer any criminal charge, but by pre¬ 
sentment or indictment, nor within” this clause. “Recorders of towns 
are not vested with criminal jurisdiction to try offenses against the 
State, except concurrently with magistrates in cases of submission, or 
to require the defendant to enter into bond for his appearance in 
court. 1 If a penalty is prescribed by ordinance of the city for the 
offense, it may be recovered by suit in the nature of an action of debt 
which should be commenced by a warrant. Tenn. Leg. Rep., vol. 2, 
p. 12. Hogan v. Mayor etc. of Chattanooga. 1877. 

Proof of Certain Facts.— Prima Facie Evidence—Act 1895, Ch. 67, 
Valid.— Caldwell, J., held that “The right of trial by jury is not 
abridged by a provision in a statute that proof of certain enumerated 
facts shall constitute prima facie evidence of fraudulent intent in the 
prosecution of an offense created by the statute.” 95, 563. 2 State v. 
Yardley. 1895. 


In Civil Cases. 

Circuit Court—Jurisdiction Over Causes Against Putative Fathers of 
Bastard Children—Under the Old Law No Trial by Jury—But Now 
Allowed.— Reese, J.: “These are causes arising under the Act of 1741, 
ch. 14, against the putative fathers of bastard children. And the 
question presented by the records for our determination is, to which 
court—the Couuty or the Circuit court—does the jurisdiction over such 
causes appertain? To determine this question we must refer to the 
Acts of 1835, ch. 6 and ch. 5. The seventh section of the act of 
tbat year, ch. 5, confers upon the Circuit courts general jurisdiction in 
all suits of law, and to administer right and justice, according to law, 
iu all cases where the jurisdiction is not conferred upon another tribu¬ 
nal. They also have exclusive jurisdiction in all causes triable by jury, 


1 T. & S., 4966; M. & V., 5794. 


2 See same case, art. 1, sec. 18, art. 2, sec. 17. 



TRIAL BY JURY. 


13 


both criminal and civil, of which the County courts had jurisdiction. 
Upon the County courts, by the third section of the Act of 1835, ch. 6, 
conferred jurisdiction by the laws then in force, except that they shall 
not have jurisdictiou of any pleas, real, personal, or mixed, nor of any 
cause, civil or criminal, wherein, by the Constitution and existing laws 
of this State the parties are now entitled to a trial by jury, nor shall 
said court have power to empanel a jury in any cause whatever. 

‘‘Before the passage of these acts the jurisdiction of the County 
court was exclusive in questions of filiation arising under the Act of 
1741, ch. 14. The bond which that act requires to be given for the 
indemnification of the county, is to be made payable to the justices of 
the County court. One condition of the bond is, that the party shall 
perform such order, touching the maintenance of the bastard child as 
that court may, from time to time, make. The Act of 1822, ch. 29, sec. 2, 
provides that, at the end of three years, allowances shall cease, and 
that the County court shall dispose of the bastard child as shall most 
conduce to its interest, either by giving it to the reputed father, or 
binding it out to some suitable person, in their discretion. 

“This whole proceeding of filiation partakes in its character of a 
county, rather than any more general interest, and the chief object is to 
indemnify the county against liability to maintain a pauper. It is a 
matter of county business. What, then, has taken from the County 
court a jurisdiction so natural and so proper to it, and which it has so 
long possessed? It is said to be the Act of 1835, above quoted, in con¬ 
nection with the provision of the first section of the Act of 1822, ch. 29, 
which permits the putative father to file on oath a negation of the 
charge, upon which being done, ‘the court may hear proof and determine 
the matter as to right, and justice may appertain/ This, it is said, 
entitles the party to a jury, and, of course, the Acts of 1835 trausfer the 
jurisdiction to the Circuit court. Within a short time after the passage 
of the Act of 1822, the Supreme court in the case of Goddard v. The 
State, determined that the court could, in the language of the act, 
hear the proof and determine the matter, aud that the parties had 
no right to a jury. This contemporaneous decision has not since 
been overruled. In the case of The State v. Coatney, 8 Yer., 210, there 
seems, indeed, to have been a jury in the County court. But that cir¬ 
cumstance constituted no part of the discussion before the court, and 


‘While the Countv court had jurisdiction to try causes, it was held that the defendant in 
a bastardy proceeding was not entitled to a jury trial. See Goddard v. The state, art. 1, sec. s; 
Thompson’s Tennessee Cases, p. 57. But when the County court allowed a jury trial, it was held 
n .rnnoniio lR 010 Ttnt. nnw the Countv court has no power to try 


tni u«< •, j n v/ 1 • 1 w , — . 

great injustice might be done to either party in „ -- -- - - - ., , . 

?erent qualifications to conduct an exciting and difficult investigation, according to the rulesi of 
law. Even the wicked and debased should have even-handed justice, so far as they have rights 
which are founded in the law. The law is made for the protection of all. every gradei and^con¬ 
dition, and should be administered in its purity to every one who is J^^^/o^erin^ its 
temples, and the way made open to the highest tribunals provided for the correction of errors. 



14 


TENNESSEE CONSTITUTIONAL LAW. 


forms no ground of the decision. And, indeed, it would follow that, it 
the court might hear and determine the matter, they might, if they saw 
fit, perhaps, have the aid of a jury, without such proceeding constituting 
an error for which the Supreme court would reverse. These questions 
of filiation, therefore, are not jury causes, and by the very terms of the 
third section of the Act of 1835, ch. 6, are left with the County court, 
while there is nothing in the seventh section of the Act of 1835, ch. 5, to 
transfer the jurisdiction to the Circuit court.” 1 19, 125. Kirkpatrick 
v. The State. 1838. 

Motion Against Surety—Proof That the Applicant Was Surety.— 
In this case Judges Powell and Humphreys agreed that under the 2 Act 
of 1801, ch. 15, on motion to recover money paid by a surety, the court 
could not receive proof that the applicant was surety. In consequence 
of this opinion the legislature in November, 1809, ch. 69, authorized the 
court to empanel a jury. 1, 335. Love v. McCool. 1808. 

Garnishment — Summary Remedies Against Public Officers — Juris¬ 
diction of Justices—Acts Increasing. 4 — PECK, J.: “The legislature passed 
an act on the 15th of November, 1821, entitled, ‘An Act prescribing the 
mode by which the holders of the notes of the Farmers and Mechanics’ 
Bank, at Nashville, and the Fayetteville, Tennessee, Bank, may, on their 
refusal to pay the same, recover judgment.’ This act, it is said, has 
given rise to the proceedings in this case against Yanzant. And it is 
insisted, that by its provisions the charter of the bank has been violated; 
that said act is in violation of the Constitution of the State, is partial, 
unequal and oppressive in its operation. . . . The act provides, 

in substance, that when payment of the notes of said bank has been 
refused, if under one hundred dollars, warrants may issue from under 
the hand of some justice of the peace, against such bank, aud after the 
demand and refusal to pay at said bank, judgment may be entered up, 
and execution may be issued, as in other cases. That if the execution 
can not be satisfied out of funds of the institution, then the officers 
having such execution, may summon persons supposed to be indebted 
to said bank, who shall, on oath declare what they owe said bank, etc. 
The act further provides that when a writ issues and is served upon the 
officers of such bank, the party may have his election, either on original 
or mesne process, to summon persons as garnishees to answer on oath 
what they are indebted to said bank, etc.; and on the return of such 
summons with the writ, and after examination of such garnishee, ‘if he 
shall declare that he is indebted to such bank in notes of said bank or 
banks, then the court may empanel a jury to ascertain the value of such 

1 H. & C., vol. 1, p. 22; Code 1858, 5354, et seq.; 3 M. & V., 4367. 

T. & S., 5354, et seq.; M. & V., 6199, et seq. 4 See Morford v. Barnes, p. 16. 

2 M. & V., 4364. 



TRIAL BY JURY. 


15 


notes, and to inquire if the note so taken and made payable in the 
notes of such bank was done with a view to defraud the note-holders of 
such bank. If done with such view, the court to give judgment for 
the amount specified in such note; if otherwise, for such value of the 
notes of said bank as may be found by the jury. 

“No new process is given by this act, unless it be that of a summons 
for a garnishee at the time of serving the original writ, or capias ad 
respondendum. Was it competent for the legislature, consistent with 
the Constitution of the State of Tennessee, to give this summons as a 
cumulative remedy to those other remedies which existed at the time 
the law passed? To admit the principle that such a law cannot be 
passed by the legislature, would be at once to strike at the root of all 
those statutes providing summary remedies against sheriffs, coroners 
and constables, delinquent at the time of the passage of the law; also 
against those providing a remedy for securities who have paid the debt 
of their principal. In short, it would be to admit that an existing con¬ 
tract could not be reached if a change in the remedy were to take 
place, so as to alter the form of the process after such contract had 
been made. Whoever pretended that the acts increasing the jurisdiction 
of justices of the peace from twenty to fifty dollars, and afterwards 
from fifty to one hundred dollars, were unconstitutional, because the 
tribunal and process was changed during the existence of the debt? It 
was indeed urged, and with some plausibility, that they were unconsti¬ 
tutional, because it gave the plaintiff a summary mode of proceeding, 
and that, too, without an intervening jury trial, and that the election of 
a plaintiff to sue before a justice placed the party defendant in such a 
situation that he could not have a trial by jury without giving security 
for the debt, whereas the law as it stood before gave him a jury trial on 
appearance bail only. These, though strongly urged to the Supreme 
court as constitutional objections, were overruled on the ground that 
the right of trial by jury was not by those acts taken away, even in 
cases growing out of Acts of Assembly where summary proceedings 
were given, and where the passing of a jury upon matters of fact seem 
to have been overlooked, still the courts, in doing a defendant justice 
under these acts, will empanel a jury and submit issues; this has been 
done on motion against sheriffs and other officers, under some of those 
acts authorizing the court to give judgment on motion. So in proceed- . 
ings in caveat cases, a jury has to pass upon the facts, unless the case 
be agreed. Cases growing out of these acts go to show that it does not 
follow that the ancient right of trial by jury is taken away, because 
the pleadings and issues are not submitted in common law form. This 
Act of Assembly then, so far as considered, does not violate the Consti¬ 
tution ; it does not give to any court an arbitrary power to seize the 
estate of the bank, or the debtor to the bank, and dispose of it without 


16 


TENNESSEE CONSTITUTIONAL LAW. 


giving the parties a day in court, and the means of contesting before a 
jury all such facts as may be necessary to the attainment of justice.” 
10,263. 'Vanzant v.Waddel. 1829. 


Acts Extending’ Jurisdiction of Justice of the Peace — Unreported 
Cases Cited.— Peck, J.: “The exercise of jurisdiction by justices on 
sums above twenty dollars has repeatedly been called in question. 1 2 
Under the act of 1794, which was in force when the Constitution of 
Tennessee was framed, justices of the peace out of court had jurisdic¬ 
tion to the amount of twenty dollars, and no more. The act extending 
that jurisdiction to fifty dollars (act of 1801) was directly made the 
determining point. In the case of Stephens v. Henderson, Supreme 
court, Knoxville, Overton and White presiding, shortly after the organ¬ 
ization of that court, the question was presented in the record in a way 
that forbade escape. And the court met it directly. It is to be re¬ 
gretted that the opinion has never been published, but it is recollected 
that the court assumed the ground in support of the constitutionality 
of the act on the premises that, inasmuch as the party was in all cases 
allowed his appeal, when he could have a trial by jury, the right of 
trial by a jury was not taken away, so that the terms of requiring bail 
or security for the money belonged to the legislature to provide; and, 
though the security required in cases of appeal differed from those 
cases where the party was brought into court by original writ, still, as 
it did not take away the right of trial by jury, the act was not unconstitu¬ 
tional. This construction of the act has been followed ever since. It 
is not speaking too largely to say that hundreds of cases have been 
before the Circuit and Supreme courts where this question of jurisdic¬ 
tion necessarily arose, and when judgments conformably to the opinion 
in Stephens v. Henderson have been rendered. In the case of ^Thomp¬ 
son v. Gibson, the same doctrine is held, and a decision in the former 
superior court is referred to as authority to support the opinion. In 
the present state of the question the propriety of lessening or increas¬ 
ing the jurisdiction of the justices of the peace rests with the legisla¬ 
ture. What the true policy is remains not for this court to determine. 
If any question in the State is settled, this ought to be considered the 
one. This assumption gains strength from the consideration that the 
late convention has not, in the amended Constitution, made any change 
limiting this power of legislation; on the contrary, it' is declared the 
laws in being and in force, and these have always been so considered 
until altered or repealed by the legislature, are to remain in force. 
This is the only view we can take of the subject, for the act of 1831, 
ch. 59, sec. 2, is no more in conflict with the Constitution than any one 


1 See same case, art. 1, sec. 8; art. 1, sec. 20. 

2 See Vanzant v. Waddel, supra. 


3 Art. 6, sec. 1. 



TRIAL BY JURY. 


17 


of the previous acts extending jurisdiction of justices above twenty 
dollars; and the 'act embraces this case.” 16, 446. Morford v. Barnes. 
1835. 

Power of the Judge to Direct a Non-suit.— MILLIGAN, J.: “In 
England, the common law courts constantly exercised this power; but 
no such power exists here. . . . The plaintiff has the right to 
have his evidence, whether slight or full, passed upon by the jury. 
Under our practice he has the right to judge whether his case is made 
out or not; and if he sees proper to let a verdict to go against him, it 
is his own folly, and for some purposes, as final and complete a disposi¬ 
tion of his cause as if judgment had been rendered on a verdict found 
by a jury.” 45, 288. 2 Littlejohn ei al. v. Fowler. 1868. 

Compensation of Jurors — Taxing Losing Party with Costs—Act of 
1875 Unconstitutional — Only Part of Statute May be Void. —The Act of 
February 24,1875, entitled “An Act to tax the losing party with the jury 
fees in all cases in civil suits and to repeal sections 4036 and 4037 of the 
Code,” was considered in this opinion. Nicholson, J.: “The Bill of 
Rights guarantees to all citizens the right of trial by jury, unimpaired 
and without violation. This manifestly means that the right shall never 
be embarrassed or encumbered with conditions, which, in their practical 
operation, may impair or violate the free and full enjoyment of the right. 
Under the Act of February 24, 1875, no discretion is left to the litigant. 
He must exercise his right, if at all, upon the condition that the jury is 
to be paid for their services by the losing party. In many cases this 
condition may, in practice, and probably would, defeat the enjoyment of 
this right. We fully appreciate the patriotic motives which influenced 
the legislature in the passage of the act under consideration. It was 
manifestly designed to diminish the burden of taxation by shifting the 
expense of jurors to the losing parties in civil causes. In that view we 
do not assume to question its wisdom. But the responsibility is devolved 
on this court to protect the Constitution from infraction, and, as far as 
in our power, to preserve the right of trial by jury from violation or 
impairment. While we are at all times reluctant to difler with a co-or¬ 
dinate branch of the government as to its constitutional powers, yet, 
when such difference does exist, we can only discharge our duties by 
promptly interfering for the preservation and protection of the Consti¬ 
tution. We are, therefore, constrained to hold the first section of the 
Act of February 24,1875, ch. 7, unconstitutional and void. It is observed 
that the second section of the act under consideration repeals sections 
4036 and 4037 of the Code. These sections provide for the making out 


1 Jurisdiction of justices has 6ince been 1 2 Citing 2, 58; 15,134; 20, 331. 

extended. See M. A V., 4898. See, also, 

13 , 268, and 17 , 417. 


2 



18 


TENNESSEE CONSTITUTIONAL LAW. 


by the clerk of lists of the jurors, to be delivered to the County court 
clerk, on which warrants are issued to the several jurors, which warrants 
are made payable out of the county treasury. It is well settled, that 
part of a statute may be unconstitutional and void, while the residue 
may be valid. But where part only of a statute is void, and the residue 
so dependent upon and connected with the void part, that it can not be 
presumed the legislature would have passed one without the other, then 
both are void. Sedg. Con. Law, 413; Commonwealth v. Hitchings, 5 
Gray, 482; State v. Wheeler, 25 Conn., 250. It is entirely manifest that 
the repeal of sections 4036 and 4037 was a mere consequence of the 
passage of the first section. Indeed, the first section would have 
operated by implication as a repeal of these two sections. It follows, 
that the entire Act of February 24, 1875, is null and void, as if it had 
never passed, and that sections 4036 and 4037, 1 2 and any others repealed 
by the Act of February 24, 1875, are still in full force.” 63, 179. 
2 Neely v. The State. 1874. 

Demanding a Jury in First Pleadings Tendering Issue—Waiving 
Trial by Jury—Amendment of Pleadings.— The 3 Act of 1875, ch. 4, 
providing the way in which a jury shall be demanded, was considered 
from a constitutional standpoint in this opinion by Cooper, J. : “ The act 
. . . carefully secures to the citizen a jury trial upon his demand. 
The object of the legislature, as shown by other provisions of the 
statute, was to diminish the expense attending the administration of 
justice; for, while giving the circuit judge the power of determining at 
what time of the term the non-jury docket shall be disposed of, it 
expressly provides that during the period of its disposition no jury shall 
be in attendance. Neither the letter, nor the intention of the act, 
therefore, can be said to be violative of the Constitution, unless it be 
held that any provision on the subject would be unconstitutional. But 
it could not seriously be insisted that suitors might not waive the right 
of trial by jury, if they saw proper so to do, or that an agreement of 
waiver once entered into would not be obligatory. The act does no more. 
It only declares what voluntary acts of the parties shall be deemed an 
agreement on their part to waive a trial by jury. And we have held at 
this term that it is in the discretion of the circuit judge, upon good 
cause shown, to allow an amendment of the pleading of either party so 
as to demand a jury, if the application be promptly made, and the 
omission to make the demand be satisfactorily explained. No applica¬ 
tion of that character was made in this case. It has long been the 
settled law of this State, that the legislature may impose reasonable 
conditions on tbe exercise of the right of trial by jury, the most notable 


1 M. & V., 4812, 4813. 

2 See same case, art. 1, sec. 21. 


3 M. & V., 3602; also 71 , 116. 



TRIAL BY JURY. 


19 


instance of which is found in the extension of the jurisdiction of justices 
of the peace to give judgment without a jury, the right to a trial by jury 
being, however, reserved to the party by the right of appeal. The act 
under consideration is clearly only a reasonable regulation, with a view 
to the public interest, of the right of trial by jury, not a violation of 
that right, and within the competency of the legislature.” 70, 686. 
Garrison v. Hollins et al. 1879. 

Demanding Jury Trial on First Day of Term—Act of 1889, Ch. 220, 
Providing for, is Constitutional.— McAlister, J., reaffirmed the doctrine 
“that our statutes requiring litigants to demand jury trial, and regu¬ 
lating time and manner of making the demand, are constitutional,” and 
held “that the demand for jury trial, though made on the first day of a 
trial term, is ineffectual under the provisions of our statutes, and must, 
upon objection, be disallowed, when it is made by mere motion in open 
court, without entry thereof on the trial docket, and after the case has 
been called and both parties have announced themselves ready for 
trial.” 95, 707. McGuire v. Railroad. 1895. 

In Equity Cases. 

When This Right is Taken Away—Act Referring Certain Parties to 
the Chancery Court Unconstitutional—Danger of Following Precedents 
—The Constitution a Warrant of Authority Binding Each Department of 
Government.— Green, J.: “In the case before the court the suit is upon 
a bond with condition faithfully to perform the duties of clerk. Of this 
case, it is clear, a court of equity would have no jurisdiction; but, 
according to the general laws of the land, it would be triable in the 
common law courts by a jury. The sixth article in the Bill of Rights 
declares that ‘the trial by jury shall remain inviolable/ By the act 
constituting this court the causes are to be tried according to the prin¬ 
ciples of a court of equity. In courts of equity there is no jury except 
at the discretion of the chancellor, and after the jury find the facts upon 
an issue sent to them, it is discretionary with the chancellor whether 
his decree be governed by that finding or not. If this cause be tried 
upon the principles governing a court of equity, it seems to me that the 
defendant's right to trial by jury is violated. It is contended that the 
legislature may define and enlarge the jurisdiction of courts of equity; 
and by giving them jurisdiction of causes of action heretofore of exclu¬ 
sive common law jurisdiction, the right of trial by jury, although taken 
away in fact, is not violated in the sense of the Constitution, that instru¬ 
ment contemplating the existence of courts of equity without juries. If 
this were true, the provision would seem to be a very useless one 


‘Acts 1875, ch. 4 ; Acts 1889, ch. 220. 



20 


TENNESSEE CONSTITUTIONAL LAW. 


indeed. The framers of the Constitution must have seen that it would 
be in the power of the legislature to frustrate the provision altogether 
in civil cases by transferring them all to courts of equity, and thereby 
dispensing with a jury; or if, as the argument is, courts of equity were 
to have concurrent jurisdiction of all cases, it might result in the exclu¬ 
sive jurisdiction of that court at the option of the plaintiffs. But there 
is no ground upon principle to prevent the giving of exclusive jurisdic¬ 
tion of all cases to the courts of equity, if it be once conceded that they 
can acquire concurrent jurisdiction with the common law courts of 
causes properly and exclusively triable in the latter courts. Under this 
view of the case we are considering, it becomes one of deep solicitude 
and vast importance. The trial by jury has been considered, in England 
and America, as the most distinguishing badge of liberty. Great solici¬ 
tude was manifestly felt upon the subject by the framers of our Consti¬ 
tution. In the ninth article of the Bill of Rights it is secured in criminal 
cases, and in the article before referred to, it is secured in civil cases. 
And so great was the solicitude which was felt on the subject that in the 
fifth article and fifth section of the Constitution a provision is introduced 
(in order that the judges may be prevented from the exercise of any 
influence on the minds of the jury) expressly requiring that the charge 
of the court should only state the evidence and declare the law. Can 
it be believed that all this solicitude and caution were manifested in 
relation to a provision which would, according to the agreement, be 
wholly defeated by transferring the jurisdiction to the Chancery courts? 

I can not so consider it.” . . . 

Peck, J. : u Does the action in question, in effect, deprive the parties 
of the benefit of a trial by jury, and therefore conflict with the sixth 
section of the Declaration of Rights? The right of trial by jury is not 
in express terms taken away by the act. It may be implied that the 
common law right of trial by jury in this, being a civil case, is taken 
away by that part of the act which directs the court to proceed accord¬ 
ing to the principles of equity. Still, from the last clause of the act, as 
one of the judges sitting under it, I would deny no man the trial of the 
facts of his case, an issue being tendered, by an impartial jury. The 
Constitution and the law both being before me, I would, as far as pos¬ 
sible, construe the latter in such way as to make it consistent with the 
former, and give to the parties in this particular what is common to all 
other suitors. The rules that I would adopt should not be arbitrary; 
at least, I would endeavor to guard against appearances that might 
justify the imputation. But while I say this, I am free to own that an 
act which gives such extraordinary powers, powers so nearly bordering 
on discretion, so speedy, so summary, and so regardless of forms, ought 
certainly to be regarded by the judge with circumspection; under it 
he should move with caution and hesitation, especially if it have the 
appearance of pointing singly to its object. 


TRIAL BY JURY. 


21 


“It might indeed be said, and with much propriety, that the right of 
trial by jury is taken away when it is not contemplated that an issue 
should be made, and the means of procuring a jury is not provided. 
Honest judges might differ as to the propriety, or even possibility, of 
calling a jury under the act; and a doubt upon a point so important 
ought to induce the judges here to turn the cause over to that tribunal 
where the jury can not be denied.” 

Kennedy, J.: “The right of trial by jury has, at all periods in the 
history of this country and of England, been held in high estimation, 
and the framers of our Constitution, not content to secure it by the use 
of the words employed in Magna Charta, l per judicium parium suorum 
and contained in the section of the Bill of Rights just referred to, have 
expressly inserted a provision on that point. . . . This right is 

not secured to these defendants by this statute. Whilst all other per¬ 
sons indebted to the bank by common law obligations or otherwise, of 
whom there is a vast number, and all other persons indebted to private 
individuals throughout this community are permitted to litigate their 
debts and other controversies before the courts of common law, where 
the right of trial by jury is secured and enjoyed, this defendant and a 
few others are referred to this forum, and subjected to a mode of pro¬ 
ceeding unknown in any other tribunal, and to which no other citizen is 
subject. If this be not a violation of the right of trial by jury, I know 
not what is. It is said by the counsel for the bank that the legislature 
has passed many statutes similar to this, where the right of trial by 
jury has been taken away; and the various cases where judgment upou 
motion has been authorized are referred to. I acknowledge the force 
of the authority of adjudication upon analogous cases. It oftentimes 
presents a forcible and conclusive argument. But it is a sufficient 
answer to the argument upon this point, to say that the cases and 
decisions referred to, though analogous, were not made in this precise 
case; and I can never follow precedent, in the line of analogy, when it 
leads to an infraction of the Constitution. Hence the necessity of a 
frequent recurrence to first principles. If we follow precedent, and 
move on according to the analogy of cases, we shall be led from step to 
step until the Constitution itself will be lost amidst the subtleties of the 
law. When precedent is established in the construction of statute or 
common law, I concede the propriety of following it, unless flatly ab¬ 
surd or uqjust. But every judge and other public officer, when called 
on to do an official act, must judge of the Constitution for himself; for 
no precedent, however grave, and no adjudication, however respectable, 
can warrant a violation of that sacred instrument. In point of fact, 
courts presume that every act of the legislature is constitutional. From 
a deference to the legislative department of the government this pre¬ 
sumption necessarily arises. Legislators are under the same obligation 


22 


TENNESSEE CONSTITUTIONAL LAW. 


to observe the provisions of the Constitution that is incumbent on the 
judges and other public officers of the land. But so long as the judi¬ 
ciary is a separate and independent branch of the government, it must 
result, that if a legislative act should be plainly and obviously opposed 
to the letter and spirit of the Constitution, the judiciary is incapable of 
observing the injunctions of the statute, and regarding the Constitution 
at the same time. One or the other must be dropped $ and as the Con¬ 
stitution is paramount to any law the legislature can make in opposition 
to it, the judges are left without any alternative. All the departments 
of government are equally bound by the Constitution. It is the warrant 
of attorney, or authority, under which all must act. So far as that 
authority is exceeded the act is void. But this excess should be plain 
and obvious, for it is the duty of the courts to reconcile the provisions 
of a statute with the Constitution, if by a fair construction it can be 
done. But when they cannot do that, and the statute is plainly and 
clearly repugnant to the true spirit of the Constitution, it is their duty 
to maintain the Constitution, and declare the statute void.” 10, 604, 
623. 'Bank of the State v. Cooper et al. 1831. 


1 See same case, art. 1, sec. 8; art. 1, sec. 20. 



SEARCHES AND SEIZURES. 


23 


SEARCHES AND SEIZURES. 

Art. 1, Sec. 7. That the people shall be secure in their per¬ 
sons, houses, papers, and possessions from unreasonable searches 
and seizures; and that general warrants, whereby an officer may 
be commanded to search suspected places, without evidence of 
the fact committed, or to seize any person or persons not named, 
whose offenses are not particularly described and supported by 
evidence, are dangerous to liberty and ought not to be granted. 

[Same as Const. 1834, art. 1, sec. 7; Const. 1796, art. 11. sec. 7.] 

Municipal Corporations Can Not Depart from These Fundamental 
Principles — Implied Powers to Pass By-Laws — U. S. Constitution.— 
Cooper, J. : “A marked peculiarity of our race has been a disinclination 
to have the private affairs of the citizen laid open to the public, except 
where it was imperatively required for the public welfare. This feeling 
has caused the insertion into the Constitution of the United States of its 
Fourth Amendment and worded the seventh section of the Bill of Rights 
of our State Constitution. ‘The right of the people/ says the former, ‘to 
be secure in their persons, houses, papers, and effects against unreason¬ 
able searches and seizures, shall not be violated.’ . . . Whenever 

the public welfare demands a departure from these fundamental princi¬ 
ples of individual liberty and common right, it is for the legislature of 
the entire commonwealth to determine, and to prescribe the mode and 
limits of the departure. The right can not be conceded to a municipal 
corporation, at any rate in the absence of a special legislative grant. The 
‘general welfare’ clause, as it has been called, of a municipal charter, 
will not authorize an ordinance in advance of State legislation. . . . 

No implied power to pass by-laws, and no express general grant of the 
power, can authorize a by-law which conflicts either with the National 
or State Constitution, or with the statutes of the State, or with the gen¬ 
eral principles of the common law adopted or in force in the State. 
Ordinances must be consistent with public legislative policy, may regu¬ 
late, not restrain trade, and must not contravene common right. These 
are general principles universally recognized, and, to some extent, illus¬ 
trated by our own cases.” 75, 134. Long v. Taxing District of Shelby 
Gounty. 1881. 


24 


TENNESSEE CONSTITUTIONAL LAW. 


JUDGMENT OF PEERS—LAW OF THE LAND. 


Law la Qeneral. 

PAGE. 

Constitution — Measure and Limits of 
Power—Not Beginning of Commu¬ 
nity—Not Origin of Private Rights. 51 
Purpose of this Section—To Secure Equal 

Rights to Minorities and Majorities. 47 
Aud to Secure Citizen Against Abuse of 
Power by Government —Restraint 
Upon Legislation — Danger to Mi¬ 
norities—Magna Charta. 35 

Value of this Provision in Times of Polit¬ 
ical Excitement—Responsibility of 
Courts in Passing on Validity of 

Statutes. 49 

Law of the Land Defined.26, 48, 55, 60 

Law of the Land Affecting Judgments by 

Motion. 29 

Legislature May Pass Laws Not Prohibited 

by Constitution. 25 

Legislature—Power—Restrictions Upon_ 27 

Partial Laws Generally Considered.47, 57 

Partial Laws—When Violative of this Sec¬ 
tion and When of Art. 11, Sec. 8_ 59 

Police Power. 46 

Right to Vote—Persons Not to be Deprived 

of, Except by Due Process of Law.. 42 
Statute—How its Validity Must be Attacked 51 
Statute—Validity of—Rules of Construc¬ 
tion—Doubt. 53 

Statute May be Void in Part. 44 

Statute, Repeal of—When it Will Not be 

Implied. 60 

Vested Rights—Taking from Some and Giv¬ 
ing to Others—Obligations, Chang¬ 
ing Nature of. 41 

Judgment of Peers. 


Freehold — Rights — Privileges. 

Bonds—Judgment on, With and Without 

Notice—Trial by Jury. 27 

Clerk—Bond of—Forfeiture of Office—Right 

to be Restored. 25 

Clerk County Court—Removal—Mandamus 

—Previous Conviction. 26 

Constable—Removal from Office—How it 
May be Done—Power Under Com¬ 
mon Law—Art. 1 , Sec. 14—Art. 5 , 

Sec. 4. 29 

Witness Fees—Speculation in. See Art. 2 , 

Sec. 2 , Davis v. State. 


Liberty and Property. 

• Bastards—Warrants for Arrest of Fathers 

of—Decree Against Property. 31 

Chancery Court—Suits in—Act Directing 
Dismissal of, Invalid. See Art. 1, 

Sec. 17, Fisher v. Dabbs. 


Liberty and Property. 

PAGE. 

Hotel and Inn-keepers’ Act of 1895 Valid- 


Evidence, What May Be. 12 

Municipal Corporations—Acts Extending 

Boundaries—Operation of. 63 


Roads, Public—Opening and Changing- 
Act of 1889. See Art. 1, Sec. 21, Tut¬ 
tle v. Knox County. 

Taxation of Litigation. See Art. 1, Sec. 17, 
Harrison v. Willis. 

Title Obtained by Grant—Divesting Same. 
See Art. 1, Sec. 17, Williams v. Register. 


Law of the Land. 

Personal Liberty. 

False Entries on Books of Particular Bank 
— Statute Providing Punishment 

for, Void. 32 

Imprisonment at Hard Labor Not Cruel 

nor Unusual. 34 

Judge—Discretion of, in Certain Misde¬ 
meanor Cases. 34 

Workhouse Law —Certain Costs Accruing 
After Conviction—Act of 1875, Ch. 

83, Void. 34 


Venue—Act Requiring to be Changed on 
Affidavits of Union Men. See Art. 

2 , Sec. 2 , Brown v. Haywood. 

Rights and Privileges. 

Banks—Discounting Notes at 7 per cent. 

See Art. 1, Sec. 20. Hazen v. Bank. 
County Court—Act to Abolish, Void. See 
Art. 7, Sec. 2, Pope v. Phifer. 

Court, Special—Act Creating, Void—Partic¬ 
ular Class of Debtors—Appeal and 
Trial by Jury—Act Taking Away 
Right of Both—Jury in Chancery 

Court... 35 

Elective Franchise — Registration Certifi¬ 
cates—Governor Can Not Annul_ 42 

Insurance—Statutes Regulating—Liability 
on Policies—Cotton in Bales—Act of 


1893, Ch. 107, Valid in Part. 44 

Judgment—Revivor—Special Act Changing 

Fixed Rights of Parties, Void. 39 

Jury—Third Verdict of—Court Can Not Set 
Aside —Opinion of United States 

Supreme Court. 43 

Pending Suit—Act of Revivor, Void—Vested 

Rights—Obligations. 41 

Private Way—Power of County Court- 

Damages—Consent of Parties. 42 

Privileges, Municipal—Four Mile Law. See 
Art. 11, Sec. 8 , State v. Rauscher. 
Railroads, Unfenced — Liability — Act of 
1891. See Art. 11, Sec. 8 , Railroads 
v. Crider. 
































JUDGMENT OF PEERS. 


25 


Personal Property. 

PAGE. 


Deprivation of—How and When—Execu¬ 
tion—Judgment Payable in Notes 

of Certain Banks. 45 

Escheat —Unclaimed Money iu Clerk’s 

Hands—Act of 1815. 45 

Privilege License —Sale of Pistols Pur¬ 
chased Before Passage of Act. 4 G 

Right to Recover Property—Act Affecting. 

See Art. 11 , Sec. 8 , Morgan v. Reed. 


Real Property. 

Act to Sell Land of Infants to Pay Debts, 
Void—Legislature Can Not Dispose of 


Estate of Citizen. 49 

Descent and Distribution—Lunatic— Act of 
1885, Ch. 88 , Void—Taking Private 
Property for Private Use—Right to 

Acquire Property. 51 

Ejectment—Indian Reservee—Suits Brought 

in Name of. 47 

Mechanics’ Lien Law —Act of 1889 Not 

Class Legislation. 53 

Processioning Land — Error of Surveyor 

—Effect of. 50 


Tax Laws. 

PAGE. 

Act Directing Refunding of Taxes to Cer¬ 
tain Individuals, Void —Art. 11 , 


Distress Warrants Due Process of Law. 

Revenue is Vital Principle of all Regular 
Governments—Summary Method of 


Raising. 54 

Statutory Remedies. 

Corporation Can Not Complain at Reme¬ 
dies Provided by Itself. 59 

Redress—Existing Liabilities. 57 

Municipal Corporations. 

Election of Officers—Penalty Against Sher¬ 
iff For Not Holding—Special Act... GO 

Boundaries—Extension of. 63 

Power to Create Would Exist in Legislature 
Without Express Authority—Ordi¬ 
nances—Power to Enforce Penal¬ 
ties. 61 

School Tax—Assessment and Collection ... 62 
Taxing Districts — Statutory Exemption 

From Liability for Defects in Streets 59 


Art. 1, Sec. 8. That no man shall be taken or imprisoned 
or disseized of his freehold, liberties, or privileges, or outlawed, 
or exiled, or in any manner destroyed or deprived of his life, 
liberty or property, but by the judgment of his peers or the law 

of the land. 1 —[Same as Const. 17%, art. 11 , sec. 8 . Same as Const. 1834, art. 
1 , sec. 8 , except that the word “free” appears before the word “man” in 
that instrument.] 


Judgment of Peers. 

In Cases of Freehold. 

Bond of Clerk—Forfeiture of Office—Right to Be Restored—Legisla¬ 
ture May Pass Laws Not Prohibited by Constitution. —Upou a failure to 
give a new bond, after being served with notice to do so, Evans was 
removetl from the office of County court clerk and a successor elected. 
Evans, after giving notice, moved the court for a mandamus to restore 
him, which was refused and an appeal taken to the Supreme court. On 
his right to be restored the court said: “He may be removed on convic- 
tion-by a jury of any such act or omission as amounts to a misbehavior, 
for which by law he may be removed. May the act or omission be 
ascertained by the court? If it occur in court and appear on the records 


1 In the case of State v. Claiborne, 19 , 332, decided in 1838, Green, J., held that: “ Free blacks 
are not citizens within the meaning of the provisions of the Constitution of the United States, 
art. 4, sec. 2, that ‘ the citizens of each State shall be entitled to all the privileges and immunities 
of citizens in the several States.’ (But see now the Fifteenth Amendment to the Constitution of 
the United States, and State Const, of 1870, art. 1, sec. 33, and art. 4, sec. 1.) . . . Nor does such 
a statute violate the Constitution of Tennessee, art. 1, sec. 8 , providing that ‘ no free man shall 
be taken,’ etc., for by freeman is here meant one who is entitled to all tne privileges and immu¬ 
nities of the most favored class; and if it meant more, the provision only applies to those who 
are already citizens of the States; and consequently would not prevent the States from passing 
laws prohibiting a given class of persons from becoming citizens.” 

See also 5, 1G7; 0 , 213; 71. 415, and Overton v. Campbell, in note to art. 6 , sec. 13. 



















26 


TENNESSEE CONSTITUTIONAL LAW. 


of the court, it need not be ascertained by verdict any more than a fact 
admitted by demurrer, or established by a judgment of the court;, 
which, being of record, can not be denied. A verdict can not falsify 
that which appears of record, nor make it more undeniable; and the 
only question is, whether the ’Act of 1811, ch. 47, be opposed by the 
Constitution. For if it he so, it was void ab initio. The legislature may 
pass all laws not forbidden by the letter or spirit of the Constitution. 
It is not against either to prescribe the duties of a clerk; that has been 
done by numerous acts, dictated by public necessity or convenience,, 
ever since clerks were first directed to be appointed. The legislature 
may declare what act or omission shall amount to a forfeiture of his 
office, as it did by 1794, ch. 1, sec. 50; 1811, ch. 17, sec. 1; 1796, ch. 7,. 
sec. 10. It may enact for the public security, that not giving new 
security, when the old becomes incompetent, shall be a failure of duty 
which shall vacate the office. 1812, ch. 16. Why not? And why may 
it not enact the same for the safety of individuals, whose welfare, as a 
» part of the people, the legislature are as much bound to provide for as- 
for the whole? The welfare of all consists in the safety and welfare of 
each. No principle exists which renders the law of 1811 unfavorable 
to the principles of freedom, to induce the court to draw it possibly 
within the equity of constitutional prohibitions.” 4, 28. Evans v. The 
Justices of Claiborne County. 1816. 

Clerk County Court — Removal —Mandamus — Previous Conviction — 
Meaning of “Law of the Land.”— HAYWOOD, J., held: “If a Clerk of the 
County court be improperly removed, and a successor appointed, a 
writ of error will lie to take the case to the Circuit court for revision,, 
as well as a mandamus to compel restitution. And the judgment of 
removal in such case would be erroneous, if made without notice to tho 
clerk of the intended proceedings to remove him; or, before the latter 
part of the last day of the term, under the Acts of 1817, 132, and 1819,. 
133. But, it is not necessary that there should be a previous conviction 
of delinquency by indictment, although he has a freehold 2 in his office 
under the Constitution of 1796, art. 5, sec. 10, the tenure being during, 
good behavior, of which he can not be deprived, under section 8 of the Bill 
of Eights, but, by the judgment of his peers, or the law of the land. 
These words, ‘judgment of his peers or law of the land,’ mean by the ver¬ 
dict of a jury in case of disputed facts, or where the facts are otherwise 
legally apparent, by the judgment of a court legally constituted. Nor 
would it be illegal or unconstitutional to say that the clerk may be 
proceeded against, both civilly and criminally, diverso intuitu; civilly,, 
for the purpose of removal; and, criminally, for the purpose of pro- 


1 H. A C„ vol. 1, p. 304; Code 1858, 785 et seq.; 
T. A S., 785 et seq.; M. & V., 973 et seq. 


3 Not §o under present Constitution. 



JUDGMENT OF PEERS. 


27 

nounciDg a judgment of disqualification, after conviction on indictment.” 
7,335. Sevier v. Justices of Washington County. 1824. 

Freehold—Rights and Privileges of Individuals. 

Judgment for Money by Motion, With and Without Notice — Regula¬ 
tion in Discretion of Legislature.— HAYWOOD, J.: “As there is one ques¬ 
tion made in this cause relative to the trial of disputed facts upon a 
motion for judgment on a prison-bounds bond, which attects very mate¬ 
rially all laws 1 authorizing judgments instanter upon motion, sometimes 
with notice, and sometimes without notice; it is, therefore, a question 
of the greatest moment, and deserves to be settled with the most 
cautious circumspection; for, as in all of them disputed facts arise to 
be determined before judgment can be given, and, as the reference of 
those facts to jurors would instantly subject the proceedings upon such 
motions to all the delays incidental to other actions, the effect would be 
to render them as dilatory as other proceedings are, and to defeat com¬ 
pletely the views of the legislatures which passed them; for immediately 
it would become the practice upon all such motions to make allegations 
of facts, to be referred to juries, without regular pleadings and precise 
issues, and without knowing to what points the evidence of the parties 
was to be directed; for want of certain issues each party would be 
obliged to come prepared with evidence to any fact which could possibly 
be alleged, and perplexity would be endless; instead of the remedy by 
motion being short and easy, it would be lengthened and interminable. 
Such inconveniences can not be viewed without concern, nor without 
exciting a high degree of solicitude. Disputed facts may arise on prison- 
bounds bonds; probates of wills, as conducted before the Act of 1789, 
ch. 23; petitions for legacies, filial portions, and distributive shares of 
interstates’ estates; appeal bonds; certiorari bonds; stay bonds; injunc¬ 
tion bonds; motions against sheriffs, clerks, and constables; motions 
against public and county treasurers, and all collectors of public moneys; 
motions by sureties against their principals, and every disputed fact in 
all matters of chancery jurisdiction, would be no longer triable, as it has 
been for many years past. There would be an instantaneous revolution 
in all these proceedings, and in those against delinquents who failed to 
pay their public or county taxes. Such being the consequences of the 
argument advanced on the present occasion, the same should be fairly 
met; and the law upon the subject should be fairly ascertained and 
applied; and this is the more indispensable, as the acts for proceeding 
to judgment by motion, have greatly increased in modern times. As 
the acts themselves do not direct issues and the reference of facts to 
juries, and, indeed, do not contemplate or provide for it; and, as courts 


1 See M. A V., 4338, et »eq. Bank v. Cooper, art. 1, 6ec. 20. 



28 


TENNESSEE CONSTITUTIONAL LAW. 


can not add a provision, which it is the intent of all such laws to exclude, 
then, either the acts themselves must be abandoned or they must be car¬ 
ried into effect, as they are written, according to the wishes of their 
makers. There is no alternative but to execute or reject them. 

“The sovereign legislative power of Tennessee, like the sovereign 
power of all other States, of whatsoever character they may be, may 
do all things, not naturally impossible, which it deems promotive ot 
the public welfare, except in such instances where, by the fundamental 
law of the nation, written by the mighty hand of the people, it is for¬ 
bidden. And in any instance where legislative power is questioned it 
bounds over opposition, unless a restriction upon that power in the 
particular instance can be clearly pointed out. The restriction, to make 
laws for judgments upon motion, and for the trial of disputed facts 
without a jury, is supposed to be contained in this section. 

“Is the judgment to be pronounced against him in the establish¬ 
ment of certain facts, that he is to be taken into custody, or that he 
shall be imprisoned, or that he shall lose his privileges as a citizen, or 
that he shall be outlawed, or exiled, or that he shall be destroyed or 
suffer death? He has a right to be tried by his peers, and of this right 
he can not be bereaved by any act of the legislature. Is the judgment 
to be that he shall lose his freehold, or his corporate rights, or his per¬ 
sonal property ? He has a right to a trial by jury of all the controverted 
facts in the cause in which that judgment is to be pronounced. The 
right to a trial by jury in all these instances, is too sacred to be inter¬ 
meddled with by any power upon earth, too inseparable from human 
happiness to be submitted to the discretion of any human legislature; 
it stands upon eternal foundations, and as time grows old it grows 
in veneration and stability. The trial by jury is likewise made indis¬ 
pensable, whenever punishment is to be inflicted, whether corporal, in¬ 
famous, or pecuniary; for by art. 11, sec. 14, every criminal charge is 
to be prosecuted by indictment or presentment, which ex vi termini 
implies a trial by jury. In all these instances the trial by jury can 
neither be changed nor impaired in perpetuity, unchangeable, unalien¬ 
able, and inseparable; but in cases where the trial by jury is not so 
necessary to the welfare of the citizen, and may be dispensed with 
without endangering his independence or safety, then the legislature is 
left free to choose the course most suitable to existing circumstances; 
and like other legislatures, ours may exercise its judgment in the adop¬ 
tion of modes of trial, best suited to the subject. In matters not here¬ 
tofore tried by jury, such as matters of equity or of ecclesiastical 
jurisdiction, which experience showed might be safely left with a 
judge, the legislature may regulate them according to its discretion, for 
what temptation could it have to choose modes which were not the best 
lor the people? Improvements in science, and change of circumstances, 


JUDGMENT OF PEERS. 


29 


might render new modes more eligible than the old ones; and it were 
unwise so to shackle the legislature that it could not use the lights 
which experience in its progress might discover. In all instances, the 
discernment and the patriotism of the legislature are relied on by our 
Constitution, except in those which were of too much value and im¬ 
portance to be left to human discretion. In all instances, therefore, 
where the legislature has prescribed a proceeding by motion to obtain 
judgment for moneys due from public or private delinquents, where the 
judgment to be pronounced will not directly or immediately affect the 
individual rights and privileges secured to the citizens by the articles 
and sections under consideration, the trial of facts may be without the 
intervention of a jury, if such be the meaning and intent of the law 
which it makes. Sevier’s office was a freehold, and the university lands 
were also freeholds and vested property. The decisions in these cases 
were not incompatible with those of 1 Haywood, 29, and 5 Haywood, 
nor with the opinion which the court is now giving, nor with the laws 
made for judgments upon motion, which do not affect any of the rights 
which are placed under the protection and guardianship of the trial by 
jury. The judge of the Circuit court, therefore, did not err in hearing 
and deciding upon the facts of the case himself.” 7, 417. 1 Tipton v. 
Harris. 1824. 

Constable—Removal from Office by County Court Without “Present¬ 
ment or Indictment” — Common Law Power of Removal — Law of the 
Land—Art. 1, Sec. 14; Art. 5, Sec. 4 .—Catron, J.: ‘‘Before our Revo¬ 
lution there can be no doubt that all the common law rules applied to con¬ 
stables, and that the County courts, having the power to appoint, had the 
power to remove, to the same extent the courts of quarter sessions of 
England had at the time of the passage of the Act of 1741. 

It is contended, on the part of the defendant, that by this section of the 
Constitution he was entitled to the ‘judgment of his peers’ before he 
could be deprived of his privilege of constable, because he was pro¬ 
ceeded against for a misdemeanor in office. This doctrine will not bear 
the test of examination, even by the most visionary theorist, much less 
when applied to the practical concerns of life by lawyers and men 
administering the government necessarily by acts, and not words. 
Suppose the constable was convicted of forgery, bribery, or felony of 
any kind, would the Circuit court, who rendered the judgment upon the 
conviction, be authorized to remove him J Where is the statute or com¬ 
mon law to be found that gives the power to render such judgment! 
No one will pretend that it exists. The constable is, and for centuries 
has been, recognized as an officer of the County or Sessions court; and 
he is 2 removable, for this reason, by that court, upon evidence, legal in 

1 Overruled on another point by Burroughs *T. & S., 400, 401; M. & V., 457, 458. 

v. Goodall, 39, 30, which see. 



30 


TENNESSEE CONSTITUTIONAL LAW. 


its character, that proves to their satisfaction that he is corrupt, and 
unfit to fill the appointment. All the rights enumerated in this section 
of the Constitution, it is contended, must be taken from a free man by 
the judgment of his peers. Let us examine if this is the true construc¬ 
tion. No free man shall be taken or imprisoned, but by the judgment 
of his peers; if so, the man guilty of murder and every other crime 
could not be apprehended; peace warrants could not issue; bail, in civil 
cases, could not be taken; the mob who despoiled the sanctuaries of 
religion and justice could not be arrested in its ravages; a contempt 
could not be punished, although the offender dragged the judge from 
his seat. 

“ Secondly, ‘ no free man shall be disseized of his liberties or privi¬ 
leges, or his property’ but by what—the judgment of his peers? Cer¬ 
tainly not, for this would destroy all the powers of the courts of 
chancery, which every day deprive men, by process, of their privileges, 
liberties, and property, and disseize them of their freeholds, and yet act 
within the pale of the Constitution; because justice is administered 
according to 1 the law of the land/ Had this latter clause been left out 
of the Constitution, the government could not possibly be administered. 
M’Connell v. Weaks, 2 Tenn. Rep. 219. This section was copied from 
Magna Charta, ch. 29 (2 Inst., 45), and was the law of the land at the 
time of the adoption of the Constitution, as the Acts of 1715 and 1778 
show, to the same extent it now is; yet that part of Magna Charta was 
within the reach of legislation, beyond which the convention placed it. 
The construction of this section of the great charter of the liberties of 
Englishmen (and, since our Revolution, of all the people of the United 
States of America) has, for centuries, put to rest the question whether 
the courts have power to punish for contempts, and regulate their own 
officers, or remove them in particular cases; as will be seen by examin¬ 
ing the Com. of Lord Coke, 2 Inst., 45; Sullivan's Lee., 247; 1 Hum. 
Hist. Eng., 450; 6 Henry’s Hist. Eng., 79, 80. Hence this part of the 
Constitution does clearly not stand in the way of the exercise of the 
common law power of removal. 

“But it is contended that the fourteenth section of the eleventh article 
precluded the County court from proceeding otherwise than by present¬ 
ment or indictment, the defendant being criminally prosecuted. To this 
argument it is a sufficient answer to say, that the proceeding to remove 
was not of the criminal nature contemplated by the Constitution; that 
a removal from office for an indictable offense is no bar to an indictment, 
conviction and punishment for the same offense. The argument proves 
too much when it affects to maintain that there must be a conviction 
for the extortion before there can be a removal from office; and that 
the removal must be predicated upon the conviction. Now, if the 
removal was a punishment, in its nature criminal, the defendant would 


JUDGMENT OF PEERS. 


31 


be first fined and imprisoned for extortion, and then punished a second 
time for the same crime, which is contrary to all law. The proceeding is in 
its nature civil, and collateral to any criminal prosecution by indictment, 
instituted upon the same facts as the Constitution of this State, art. 4, sec. 
4, Brownshall’s Case, Cowp., 820, and King v. Southerland, 6 East, 152, 
fully prove. Even had Fields been acquitted by the jury, and the court 
had discovered, from the facts proved upon the trial of the indictment, 
that he was guilty of corrupt practices in a manner not amounting to 
extortion, yet I have no doubt it would have had the power to make an 
order of record, calling upon the accused to show cause why he should 
not be removed from his office; and upon due notice he might have 
been removed, either upon proof by witnesses, or upon the facts 
appearing upon the trial of the indictment. In many matters coming 
before the court it must of necessity exercise its legal discretion; for 
instance, in taxing costs, if the defendant is thought guilty, although 
acquitted by the jury, by the Act of 1817, ch. 184, sec. 2, or in taxing 
the prosecutor by the Act of 1813, ch. 136, sec. 3, the court judges of 
the facts, and gives judgment against the defendant or prosecutor, upon 
which a fi. fa. or ca. sa. may issue without the privilege of the party 
being tried by jury; and property, liberty, and supposed privilege are 
taken away by the court alone, and yet the Constitution is not violated. 
The same may be said in the numerous cases where judgments are ren¬ 
dered upon motion; but all this is done by ‘law of the land.’” 8,173. 

Fields v. The State. 1827. 

Where Liberty and Property Are Involved. 

Fathers of Bastard Children—Warrants for Their Arrest—Decrees 
Against Their Property. — CATRON, J.: “By the ‘Act of 1741, ch. 14, S6C. 
10, the person charged by the woman before the justices was to be 
adjudged the reputed father, and nothing further was to be done when 
the proceedings were returned to the County court but for the court to 
make the order for maintenance. . . . It is contended, that the 

court can not, consistent with our Constitution, make an order on this 
man without the judgment of his peers. Were this doctrine sound, the 
magistrates had no power to issue the warrants arresting the defendant 
in this case; nor could they arrest the felon, and confine him for trial, 
because he would be deprived of his liberty; nor could a court of chan¬ 
cery give a decree for property both -real and personal, for this is 
depriving a man of his property. The English Magna Charta has the 
same provision, from which the framers of our Constitution borrowed it; 
the construction of which has been settled as early as the time of Sir 
Edwin Coke, who, in his reading upon this statute, tells us that the cases 

1 See, now. M. & V., 6199, et seq.; also, Kirkpatrick v. The State, and O’Neal v. The State, art. 
1, sec. 6, p. 13. 



32 


TENNESSEE CONSTITUTIONAL LAW. 


in which courts act without a trial by jury or ‘peers’ are innumerable 
and undefined, being done ‘by the law of the land.’” 10,100. Goddard 
v. The State. 1825. 


Law of the Land. 

Statutes Affecting Personal Liberty. 

Statute Fixing a Penalty for the Misdeeds of Employee of a Particular 
Bank Void Because a Partial Law.— EEESE, J.: “The prisoner was 
indicted for making a false entry on the books of the Union Bank with 
the intention to defraud the bank. The indictment is founded upon the 
twenty-second section of ‘An Act to charter the Union Bank of the State 
of Tennessee,’ 1832, ch. 2. That section enacts ‘that if the cashier or 
any other of the officers, etc., or servants of said corporation . . . 

shall make false entries upon the books of said bank, with intent, 

. . . said officer, agent or servant shall be held . . . guilty of 
felony, and shall upon conviction thereof, be sentenced . . . for a 

period not less than five nor more than twenty years.’ . . . The 

‘question is whether, in reference to our Bill of Eights, the twenty- 
second section of the act referred to can be regarded and enforced as 
“the law of the land.”’ The section twenty-two . . . is to be 
regarded as if it stood alone; and as if, aloof from all connection with 
the charter of the Union Bank, it had been a statute of one section, 
enacted after that institution had full corporate existence, with a view 
to make the felony in question, affecting the officers, agents, and serv¬ 
ants of that institution. It is an act, then, creating a new felony in 
relation to the officers, servants, and agents of the Union Bank, and to 
them only. Is this a ‘law of the land’ in the sense of our Bill of Eights? 
Law, to use the definition of Mr. Justice Blackstone a little modified to 
suit the genius of our institutions, ‘is a rule of civil conduct prescribed 
by the law-making power of the State, commanding what is right or 
prohibiting what is wrong.’ This, then, is a rule of conduct prescribed 
by the legislature, and directed to the officers, agents, and servants of 
the Union Bank, prohibiting them from doing what is wrong. What is 
the Union Bank? It is a legal person, having capacity to sue and to be 
sued; to own property, and to employ agents and servants. This, then, 
is a rule mandatory to the servants and agents of this legal person. It 
expends all its force upon them. This statement of the question, 
merely, goes far, it seems to us, to supersede the necessity of elaborate 
reasoning on the subject. Not, indeed, upon the ground that the officers, 
servants, and agents of this legal person, the bank, are more or less 
numerous, but because the officers, agents, and servants of this person 
only, and not of any other persons, are comprehended or affected. If 
the felony were enacted with regard to the clerks, servants, and agents 


LAW OF THE LAND. 


33 


of a merchant, to deter them from embezzlement and false entries, 
would it be imagined, for a moment, that it would be regarded as the 
Maw of the land/ and consistent with the Bill of Rights? 

“If the felony affected only all the clerks of all the merchants of 
Nashville, or of Davidson county, or of Middle Tennessee, would that, 
in either case, be ‘the law of the land?’ It is believed none would so 
contend. And why not? Simply because the law of the land is a rule 
alike embracing, and equally affecting, all persons in general, or all 
persons who exist, or may come into the like state and circumstances. 
A partial law, on the contrary, embraces only a portion of those persons 
who exist in the same state, and are surrounded by like circumstances. 
If peculiar felonies, affecting all the people, or certain of the public 
officers of East Tennessee only, were held to be the 1 law of the land/ it 
would be difficult to say for what object that clause was inserted in the 
Bill of Rights. One of its objects has been stated, in various adjudica¬ 
tions in our State, to have been to protect the feeble and the obnoxious 
from the injury and ipjustice of the strong and the powerful, and, in 
general, to protect minorities from the wrongful action of majorities. 
This being its scope and purpose, would it not interdict the legislature 
from passing such an act as is last above referred to, for instance, 
creating certain acts of non-feasance or malfeasance of the register of 
the Western District, although a public officer, a felony, leaving the 
register of Middle Tennessee, East Tennessee, etc., unaffected by it? 
Certainly it would. And why? Because the law would not treat simi¬ 
larly all who were in like circumstances} it would therefore be partial, 
and of course not the law of the land. 

“At the time of the enactment of this statute, there were other 
banks having actual corporate existence, as we can see from our statute 
book, with like faculties and functions. They were not embraced; other 
banks had a potential existence; that is, the legislature had power to 
make others. The act, however, embraces the Union Bauk alone and 
its servants, etc., and not all who are, or may be, in the like state and 
circumstances. If, as in Alabama and Arkansas, the legislative power 
being constitutionally expended by the creation of one bank, a felony 
had been created, limiting itself in its terms to the bank established, we 
do not doubt that under such a Bill of Rights as ours, such law would be 
constitutional. We do not think the law in question partial, because 
merchants’ clerks, or the public officers called clerks, were not 
embraced; but because the officers, agents, and servants of banks in 
general, persons in like situations and circumstances, were not embraced. 
It matters not how few the persons are; if all who are or may come into 
the like circumstances and situations, be embraced, the law is general, 
and not a partial law. The principles here set forth are not new in this 
State; they are little more than the reaunouncement of what is said in 

3 


34 


TENNESSEE CONSTITUTIONAL LAW. 


2 Yerg., 260, 554, 599; 4 Id., 202; 5 Id., 320; Jones v. Petry, 10 Id. 
Those cases, indeed, refer themselves to the operation of partial laws 
upon civil rights and remedies, while this case happens to be the appli¬ 
cation of our Bill of Rights to a partial law creating a felony. But the 
principles are identical, and there is certainly no reason why the protec¬ 
tion intended to be extended to individuals by the Bill of Rights should 
not be as effective, where their liberty, as well as their property, may 
be exposed to the operation of a partial law.” 22, 490. Budd v. The 
State. 1842. 

Working* out Costs Accruing After Conviction for Clothing and Other 
Necessaries — Act Containing this Provision Void. — MCFARLAND, J., held 
that “The act of 1875, ch. 83, which provides that the convict be 
further held in the workhouse, after working out the imprisonment 
affixed by the jury, and all the costs in the case to work out; ‘also, all 
costs which may accrue after conviction for clothing and other neces¬ 
saries ’ was unconstitutional. In delivering the opinion he said: ‘Sup¬ 
pose, after the convict has been imprisoned a time sufficient to pay the 
costs in the case, the superintendent of the workhouse assumes the 
right to hold him a still longer time to work out the cost of clothing 
furnished, and the convict denies the right, denies that the clothing has 
been furnished or received by him, denies the cost or value charged by 
the keeper. Where is his remedy? He has never had an opportunity 
to be heard upon these questions, no court has passed judgment upon 
these disputed facts. His keeper says the cost of necessary clothing 
furnished is ten dollars, and that the convict shall serve forty days, and to 
this imprisonment he is condemned without a hearing, and condemned 
by a tribunal unknown to the law, and left without a remedy, unless it 
be by writ of habeas corpus; but the Constitution does not leave him 
to this remedy. He should be condemned first, and not first impris¬ 
oned and afterwards left to obtain his discharge, if not willing to sub¬ 
mit. The remedy of habeas corpus in such a case would be without the 
trial by jury, to which the defendant was entitled.” 68, 207. Knox v. 
State. 1877. 

Imprisonment at Hard Labor Not Cruel Nor Unusual — Discretion of 
the Judge in Certain Misdemeanor Cases. — M. & V., 6259, reads as fol¬ 
lows: “In all cases where a person is, by law, liable to be imprisoned 
in the county jail for safe-keeping or punishment, confinement in the 
workhouse, if one be provided, may, in the discretion of the court or 
justice, be substituted.” 

Lurton, J.: “Where the conviction is for a misdemeanor, and the 
punishment is not prescribed by statute, the trial judge may punish by 
a fine not exceeding fifty dollars, and imprisonment not exceeding one 
year, either or both in his discretion. This is well settled and does not 


LAW OF THE LAND. 


35 


violate any constitutional privilege. Atchison v. State, 13 Lea, 275; 
7 Cold., 726. Thus, a wide discretion is imposed in the magistrate, and 
he is enabled to graduate punishment with some regard to the circum¬ 
stances of the particular case. That this discretion as to the nature 
aud duration ot punishment may be committed to a judge without vio¬ 
lation of the constitutional proviso above quoted, is due to the fact that 
at the common law the kind aud extent of punishment, in the absence 
of a statute prescribing the punishment, was left to the trial judge. 
So the ancient statutes prescribing punishments very frequently fixed a 
limit and permitted the judge, within such limit, to determine the pun¬ 
ishment. In either case there is no violation of the right of trial by 
jury. The guilt of the defendant has been determined by a jury, aud 
the law attaches to the verdict the punishment prescribed by the judge 
if within the limits prescribed by law. Statutes prescribing imprison¬ 
ment for felony not to exceed a certain number of years, and with or 
without hard labor, in the discretion of the court, are by no means un¬ 
usual, and we have been unable to find any authority questioning the 
validity of such statutes. It is not easy to understand why a judge 
may, in his discretion, inflict imprisonment not exceeding one year, aud 
yet may not be empowered to add labor as a part of the sentence. Hard 
labor is not an unusual or a cruel punishment.” 89, 733. Durham v. 
The State. 1891. 

Statutes Affecting Itights and Privileges. 

This Provision Introduced to Secure the Citizen Against Abuse of 
Power by the Government — Restraint Upon Legislation — Danger to 
Minorities—Act Taking Away Rights of Appeal and Trial by Jury — 
Jury in Chancery Court—Magna Charta—Special Tribunal—Particular 
Class of Debtors.— “By the Act of 1829, ch. 95, a court was directed to 
be holden at Nashville, to consist of a judge of the Supreme court, a 
chancellor, aud a judge of the Circuit court, with power and authority, 
upon complaint beiug made by the bank, to hear and determine all cases 
against the officers of the bank aud their sureties, and against persons 
who may have overchecked, and thereby become defaulters to said 
bank. The court was empowered, by the act, to hear evidence and to 
determine the cause according to the principles of a court of equity. 
The court was declared to be supreme within its sphere of action, and 
that no appeal lies from its decision. On the 2d of October, 1820, 
Charles Cooper was appointed clerk of the bank, and at the same time 
he entered into bond with securities, for the faithful aud correct dis¬ 
charge of his duty; he continued clerk until January, 1822, when he was 
reappointed, during which time he . . . received its funds to a 

large amount, and applied them to his own use aud benefit, etc. The 
defendants plead that Jacob Peck, Nathan Green, and William E. Ken- 


36 


TENNESSEE CONSTITUTIONAL LAW. 


nedy had no power or authority to hear, try, and determine said com¬ 
plaint, nor had they jurisdiction thereof, by the Constitution ot the 
United States and the Constitution of Tennessee, and the law of the 
land, with an averment that jurisdiction is in the County or Circuit 
courts of Davidson.” 

In support of this plea several constitutional grounds were taken. 
“This decision was made by the tribunal itself,” says Mr. W. F. Cooper, 
in a note to this case, “upon plea of the defendant to the jurisdiction. 
Each judge delivered a separate opinion, assigning to some extent 
different reasons. The original reporter and Mr. Meigs (Dig., sec. 530) 
concur in stating that the act was held unconstitutional, because retro¬ 
spective, and therefore violative of the Const., art. 1, sec. 20; because 
violative of the right of trial by jury, art. 1, sec. 6; and, because partial 
in its operation, and not the law of the land, art. 1, sec. 8. Upon the 
last ground all the judges concurred, and it is upon this ground that it 
has been generally cited in subsequent cases.” What was said with 
reference to each of the first two sections by each of the judges will be 
found in its proper place. Following are the opinions on the last subject 
mentioned: 

Green, J.: “By ; law of the land’ is meant a general and public law, 
operating equally on every individual in the community. Such is the 
opinion of Judge Catron, in the case 1 before referred to, and such was 
the opinion of Lord Coke upon the construction of Magna Charta. In 
his Commentary on this instrument, (2 Institute, 51), he says, that the 
terms ‘law of the land 1 were used that the law might extend to all. He 
informs us that parliament, by an act in the eleventh year of Henry VII, 
violated the principles of the great charter in this particular, and that 
under the authority of this act, Empson and Dudley committed horrible 
oppressions and exactions, to the undoing of many people, but that in 
the first year of Henry VIII, this act was repealed on the avowed ground 
that it was a violation of the charter. ‘And the ill success hereof, 1 he 
adds, ‘and the fearful end of these two oppressors, should deter 
others from committing the like, and should admonish parliaments that, 
instead of the ordinary and precious trial per legem terrae , they bring 
not in absolute and partial trials by discretion. 1 If the construction here 
contended for be not the true one, it seems to me, that an edict in the 
form of a legislative enactment, taking the property of A, and giving it 
to B, might be regarded as the ‘ law of the land, 1 and not forbidden by 
the Constitution j but such a proposition is too absurd to find a single 
advocate. 

“This provision was introduced to secure the citizen against the 
abuse of power by the government. Of what benefit is it if it impose 


Vanzant v. Waddel, art. 1, sec. 6, p. 14; also this section, and sec. 20. 



LAW OF THE LAND. 


37 


no restraint upon legislation? Was there not as just ground to appre¬ 
hend danger from the legislature as from any other quarter? Legisla¬ 
tion is always exercised by the majority. Majorities have nothing to 
fear, for the power is in their hands. They need no written Constitution, 
defining and circumscribing the powers of the government. Constitu¬ 
tions are only intended to secure the rights of the minority. They are 
in danger. The power is against them; and the selfish passions often 
lead us to forget the right. Does it not seem conclusive, then, that this 
provision was intended to restrain the legislature from enacting any law 
affecting injuriously the rights of any citizen, unless at the same time 
the rights of all others in similar circumstances were equally affected by 
it? If the law be general in its operation, affecting all alike, the 
minority are safe, because the majority, who make the law, are operated 
on by it equally with the others. Here is the importance of the provision 
and the great security it affords. 

“Apply these principles to the case before the court. A particular 
description of the debtors of the bank of the State are assumed to be 
in default, and to have incurred liabilities to the bank. The right of 
action has already accrued, and the courts of common law have clearly 
exclusive jurisdiction. Here the defendants would have been entitled 
to a trial by jury, and to an appeal to the Supreme court. In this state 
of the case, the legislature passed the act under consideration, giving to 
this court the jurisdiction of those particular causes only; direct the 
mode of trial to be according to the principles of a court of equity, 
(which is without jury,) and declare that there should be no appeal, at 
the same time the law, as it regards all others, remaining unchanged. 

“This law only acts upon individual cases, and is the same in prin¬ 
ciple as if a law had been passed in favor of some one merchant, enabling 
him, by the method therein prescribed, to take judgment against his 
debtors without the right of appeal. The interest which the people 
have in the bank is a sufficient reason why the legislature should feel a 
deep solicitude to secure its funds, but is no reason why they should 
overstep the limits of legislative authority to effect this end. Nor is it 
any reason why the court should enforce an act passed without sufficient 
deliberation, which infringes, as .we believe, the Constitution. Two 
important privileges, the trial by jury and the right of appeal, are by 
this act taken away in these special cases, while every other member of 
the community, having incurred similar liabilities, enjoys them. The 
fact that the persons embraced in this act form a class of the debtors 
to the bank, tends no more to give it the character of a general law than 
if the act had operated on one individual debtor only, whose case might 
have some peculiarity distinguishing it from that of all other debtors. 
Other banks, and many merchants, and many other members of the 
community, have contracts similar to the one set out in this bill. In 


38 


TENNESSEE CONSTITUTIONAL LAW. 


order to have avoided the force of the objection to this act, it should 
have operated equally on all these; and because it has not done so, it is 
not ‘the law of the land. 7 

Peck, J.: “Is the act, upon its face, partial in its provisions and 
personal in its application, affording advantages to one side and with¬ 
holding them from the other, by such provisions as are found not to 
apply to other portions of the community besides those specified in the 
act? This is a delicate question. I am confident that the framers of 
the law did not intend that the act should be subject even to such a 
suspicion; but times do arise when men are hurried into measures, 
which, on cool deliberation, they might themselves condemn. Putting 
intentions aside, what are the provisions of this act? It provides that, 
touching a few individuals, the court should, by summary process, call 
them before the judges, and fix at pleasure the time of their appearance, 
put interrogatories to principals in bonds, hear testimony, adjudge and 
award execution against both them and their securities, for breaches of 
trust, indebtedness and malfeasance in office. All this the judges are 
empowered to do by this act, without regard to form or substance. The 
court is to be governed by the rules of equity. It is supreme in its 
sphere of action, and from its judgments there can be no appeal. . . . 
The duty assigned to this court is aside from the duty belonging to its 
members as judges; the act relates to the few specially named in it; 
the rules by which we are to be governed are not those common to the 
rest of the community; the right of trial by jury is made discretionary, 
if not absolutely taken away by the act, and the right of appeal is taken 
away in express terms; under these circumstances, is the law of the 
land likely to be afforded to the defendants? . . . Upon this last 

point I am clear that the act is unconstitutional and void.” 

Kennedy, J. : “The statute contemplates the arraignment of certain 
particular debtors to this bank before a tribunal where no other person 
can sue or be sued, and to have their rights ascertained and settled by 
rules that apply to no other debtors of this institution, nor to any other 
member of the community. Does such legislation harmonize with the 
true spirit of our Constitution? . . . That the defendants were not 

intended to be subjected to the payment of these demands by the judg¬ 
ment of their peers before the forum is manifest. The nature and the 
proceedings of the organization of the court were not intended to refer 
the case to a jury. A jury in a Chancery court can not be constitution¬ 
ally demanded by either party. It is only called, if at all, to aid the 
chancellor. The proceeding here is somewhat according to the course 
of chancery practice. It is clear, then, that under this statute they are 
denied the privilege of being judged by ‘their peers/ as the whole 
matter of proof is submitted to the court. Nor is their liability to be 
fixed and ascertained by the ‘law of the land/ No individual can be 


LAW OF THE LAND. 


39 


subject to auy liability but by one or the other of these two courses of 
proceeding, per judicium parium suorum , nisi per legem lerrae. What is 
‘the law of the land?’ These words are technical, peculiar to the sci¬ 
ence of the law, and must receive that construction and meaning which 
the science has assigned them. This is a rule well settled by the law, 
when technical terms are employed in any art or science. At the time 
when our Constitution was formed, these words have assigned to them by 
the law a specific and definite signification. This was known to the 
members of the convention at the time they employed the expression. 
If so, we are obliged to give them the same meaning which was known 
to have been assigned to them by the law at that time. For the pur¬ 
pose of ascertaining the import of these words, it is unnecessary to 
refer to their origin. The history of Magna Charta is identified with 
the law. The adjudications upon the instrument before our Revolution 
settled the meaning and signification of this expression. In the second 
part of Coke’s Institutes, page 51, after showing various objections to 
the employment of other words in connection with these which might 
give them a partial operation, the author says, ‘but that the law might 
extend to all, it is said, per legem terrae, by the law of the land.’ Does 
this statute apply to all the citizens of the State? Does it apply to all 
the debtor class of society? Or to all those who are indebted to the 
bank? It does not. It is intended to affect only a few of those who 
are indebted to that institution. It can not therefore with propriety be 
. called legem terrae , the law of the land. Other authorities on this point 
might be cited, but the universal admission of the accuracy of Coke in 
such learning makes it unnecessary. If it were necessary, the opinion 
of Judge Catron in the case of Vanzant v. Waddel . . . could be 

produced.” 10, 600. 1 Bank of the State v. Cooper et al. 1831. 

Special Act — Revivor of Judgment — Act Changing Fixed Rights of 
Parties Partial and Unconstitutional.— George Bell, in his lifetime, 
obtained judgment against M. Bell and others, which was paid to said 
G. Bell, except about $1,800. George Bell died; the scire facias does 
not show when; no person administered upon his estate. In 1829 the 
legislature passed an act authorizing the judgment to be revived in the 
name of Tate’s executors, who claimed to be the equitable owners of 
the judgment. This scire facias has issued on that judgment, to revive 
it against Bell in the name of Tate’s executors. Bell moved to quash 
the scire facias. Peck, J.: “At the trial term, as specified in this act, 
Bell appeared and moved to quash the scire facias , on the ground that 
the act, being limited and partial in its operation, is unconstitutional 
and void; and that, being the ouly authority for the scire facias, it is void 
also. It is here proper to remark, that it is with reluctance the court 


1 See same case, art. 1, sec. 6, p. 19; art. 1, sec. 20. 



40 


TENNESSEE CONSTITUTIONAL LAW. 


will declare a law unconstitutional; not from any fears of consequences 
which might arise from conflict of opinion with another co-ordinate 
branch of the government, but because the court might incline the 
more to doubt that opinion, where, on the same point, it may seem to 
have been formed upon deliberation by others officiating in a high and 
responsible sphere. Hence this court, in a doubtful case, would permit 
a law called in question to have its effect. But when the court is satis¬ 
fied, there is an obligation resting upon them that it would be criminal 
to compromise. 

“The act in question has been passed in terms directly to affect a 
judgment of this court. It is not passed in aid of the court, for the 
court, in dispensing justice, did not need the aid of it. The law, as it 
stood at the death of Bell, fixed the rights of the parties; the disposi¬ 
tion of the fund expected to be raised from the judgment was governed 
by existing rules; these were all before us, subject to be acted upon as 
soon as the proper person should, under the known forms of existing 
law, apply to us. But by the act we are not anticipated, but superseded. 
We are instructed that Bell held the instrument which had been prose¬ 
cuted to a judgment, as the trustee for the executors and legatees of 
William Tate, deceased, and the legatees of Margaret Tate, deceased; 
that George Bell had departed this life out of the State, insolvent; and, 
that no person will administer on his estate. Upon the facts thus 
assumed, the act 1 enables 1 the executors of William Tate to revive the 
judgment in their names, as if they were the executors of George Bell, 
deceased. It is not at all material for this court to inquire into tbe 
truth of the facts found by the makers of the law. Supposing them all 
to be true, are there not others who have a right to question them? 
Are not the creditors of the deceased Bell entitled to their day in court? 
Does not the law, as it stood before the passage of this act, give them 
time to appear as real representatives, with all the liabilities resting 
upon them common to administrators, and having revived the judgment 
and secured the fund, await the mandate of the proper tribunal to make 
distribution ? It is believed every lawyer will answer these questions 
in the affirmative. If these rights exist in others, and the law supposes 
they do, how can we overlook them? It is impossible. While our busi¬ 
ness is in train to come to a result between parties, those unknown to 
the record and existing laws are forced upon us by the operation of an 
act made, not as a general provision, but to reach particular individuals. 
This at first blush awakens surprise, if not suspicion. Facts and circum¬ 
stances supposed to have existed between persons deceased are fixed and 
settled by the act; and, in a case where many should be heard, one party 
is thrown upon us with his equitable rights established. 

“So long as we consider that there existed courts of equity open to 
the investigation of the subject of this trust, there was no necessity for 


LAW OF THE LAND. 


41 


the act we are considering. Take the act as it is intended, and it will 
have the effect of a decree upon the rights of parties, though not upon 
the rights of all that must of necessity be heard, if resort to the proper 
tribunal was had. Hence the one-sided character of the act. Its appli¬ 
cation to a particular case makes it analogous to the case of the Bank 
v. Cooper et al. The motion to quash the scire facias must 

prevail.” 12, 202. Tate's Executors v. Bell. 1833. 

Act to Revive in Pending Suit — Taking Vested Rights from Some 
and Giving Them to Others — Changing Nature of Obligations.— The 
legislature passed an act authorizing Young to prosecute a suit then 
pending in the Circuit court without taking out letters of administra¬ 
tion upon the estate of Elrod, deceased. Subsequently, a rule was 
entered to revive in the name of Young. The rule was made absolute. 
Judgment for plaintiff. Peck, J.: “ It is insisted the Act of Assembly is 
unconstitutional. The law, as it exists at the time of the death of a mem¬ 
ber of society, fixes the rights of parties; these rights should be uniform; 
laches or accidents may be the cause of the loss of a right which one 
more vigilant might save. This does not arise from defect of law; but 
it may arise from the neglect or misfortune of one claiming the benefit 
of it. It should be the business of the judge to see that the scales of 
justice be held with an even hand. An interference with the uniform 
administration of justice, directing that administration aside from uni¬ 
formity, so as to give to one man rights which must be denied to another, 
would at once be subversive of the liberty and security guaranteed by 
the Constitution. This would be emphatically the case if any power but 
the court was permitted to direct at pleasure the rule and measure of 
justice in specified cases. Who would be safe if the legislature were per¬ 
mitted to dictate the decision of causes pending? What would be the 
use of courts under such a state of things? They would be mere instru¬ 
ments in the hands of others, and all their powers and usefulness would 
be paralyzed. They might make records and issue process, but the 
mind and independence would be gone, and with these would also go 
responsibility; for if the agent be not free to act, there should not be 
accountability; hence arises the great necessity of courts looking to 
their own constitutional rights and powers, and firmly disregarding all 
attempts at innovation upon them. 

“Admit the principle, that the legislature at pleasure cau take from 
or add parties in causes pending, and how can the court look forward to 
results? The obligation of the judge, ‘that he will do equal law and 
right to all persons/ that he will delay no one of common right, by 
reason of any command from any person or persons in authority, or for 
other cause whatever; but that he will faithfully, truly and justly do 
equal and impartial justice to individuals and the public, are the great 
and mighty barriers to all encroachment upon that administration of 


42 


TENNESSEE CONSTITUTIONAL LAW. 


justice which puts citizen upon an equal footing with citizen. Who, on 
the death of Elrod, became instantly interested in the subject-matter 
litigated in this suit? The widow, the heirs, and creditors of the deceased, 
had a direct interest; an interest which a law uniform in its operation 
fixed and established. To settle the interests of all needed no legisla¬ 
tion. The way was plain, and it was for the court to see that it was 
properly pursued. What is the attempt made? To disregard the rules 
which were general; make an excepted case of the present; substitute 
a person not known to the law of the land, and permit him, without 
responsibility, to stand in the place of Peter Elrod and prosecute the 
suit. It is asked, What section of the Constitution has been violated 
by the act in question? It is auswer enough to say, that the act takes 
away from some their vested rights and gives them to others; changes 
the nature of obligations and dispenses with the liabilities which all 
others in similar situations would lie under. There is no aspect in 
which it can be viewed that does not present a strange anomally, alike 
conflicting with the sworn duty of the judge, the vested rights of persons 
and the Constitution. What is the difference between such a course and 
appointing a judge over the head of the legitimate and constitutional 
one to decide the cause? None can be perceived in principle, though, in 
fact, the consequences in the case before us may be the most injurious 
and fatal to rights. The act in question, being repugnant to the Con¬ 
stitution, gave to Young no authority to prosecute this suit. The judg¬ 
ment is, therefore, reversed.” 13, 321. Officer v. Young. 1833. 

Private Way—Damages — Consent of Parties — County Court.—T ot¬ 
ten, J., held: “The County court has no power to compel a private 
person, at whose instance a private way is opened through the lands of 
another, to pay damages for such private way. The consent of the par¬ 
ties can not confer such jurisdiction. The right of a private way can 
only exist by prescription or convention between the parties, and not 
by judicial compulson. The Act of 1811, ch. 60, which authorizes the 
construction of private ways, upon the petition of any persons whose 
lands may be surrounded by the lands of another, upon petitioners 
paying damages, is repugnant to the Constitution, as violative of private 
right.” 33, 53. Bice v. Alley. 1853. 

Registration Certificates — Power of Governor to Annul — Elective 
Franchise—Persons Having the Right to Vote Can Not be Deprived of 
it Except by Due Process of Daw. — SMITH, J.: “The elective franchise is 
a right which the law protects and enforces as jealously as it does 
property in chattels or lands. It matters not by what name it is desig¬ 
nated—the right to vote, the elective franchise, or the privilege of the 
elective franchise — the person who, under the Constitution and laws of 
the State, is entitled to it, has a property in it, which the law maintains 


LAW OF THE LAND. 


43 


and vindicates, as vigorously as it does any right of any kind which 
man may have and enjoy. The rules of law which guard against depriva¬ 
tion or injury, the rights of persons in corporeal properties, are alike and 
equally applicable to the elective franchise, and alike and equally guard 
persons invested with it, against deprivation of, or injury to it. Persons 
invested with it, can not be deprived of it, otherwise than ‘by due 
process of law.’ To the same extent that persons can not be deprived 
ot their lands and chattels, or rights and franchises of any kind, other¬ 
wise than ‘by due process of law,’ is it also true, that, ‘without due 
process of law,’ they can not be deprived or divested of the muniments 
which evidence and establish their titles and rights, such as deeds, bills 
of sale, bonds, promissory notes and the like; and the certificate of 
registration, and right to vote, may be properly included in the cat¬ 
egory.” 

The court held that the act enabling the Governor to defeat and 
annul registration certificates, and the right of the qualified citizen to 
the franchise, was in violation of this section, also in violation of art. 2, 
sec. 2. 46, 243. State v. Staten. 1869. 

Third Verdict of Jury—Court Shall Not Set Aside — Opinion of Federal 
Supreme Court.— SNODGRASS, J., held that sec. *3835, M. & V. (T. & S., 
3122), forbidding courts to set aside third verdict of jury when thus 
construed is constitutional. In delivering the opinion he said: “The 
statute was . . . applied by us at Jackson, in 1889, in the case of 

2 Louisville & Nashville Railroad Compauy, in error, v. Woodson, now 
reported in 134 U. S., 614 (Lawyers’ Coop. Ed., book 33, page 1032). 
In that case the court determined that there was no evidence to sustain 
the verdict, but being a third of which the first and second had been 
set aside on the merits, the statute was held to prevent reversal. The 
railroad company carried the case before the Supreme court of the 
United States, insisting that the statute was void under the Fourteenth 
Amendment to the Constitution of the United States, providing that no 
State shall pass any law which shall deprive any person of life, liberty, 
or property without due process of law—this court, after giving the act 
the construction stated, having adjudged that it was not in conflict with 
such Amendment to the Constitution. This was the first time this con¬ 
stitutional objection was made to the statute, as appears from the 
reported cases cited. The Supreme court of the United States held that 
the act bore no such construction. It said (after quoting many Ten¬ 
nessee cases, including several of those we have cited): ‘From these 
decisions it is clear that in Tennessee, as elsewhere, although the jury 
are the judges of the facts, yet the judge has power to set aside the 

‘Acts 1801, ch. 6, sec. 59: H. <fc C., p.229; Code 
1858, 3122, p. 590. 


2 Not iii Tennessee Reports. 



44 


TENNESSEE CONSTITUTIONAL LAW. 


verdict when in his judgment it is against the weight of the evidence, 
but that that supervisory power can not be exercised under the statute 
when the triers of the facts have three times determined them the same 
way. This manifestly refers to a state of case where, in the opinion of 
the judge, the verdict should have been otherwise than as rendered, 
because of the insufficiency of the evidence to sustain it, but not to a 
case where there is no evidence at all. . . . Tested by this rule, 

whenever the statute is applied, it must be upon the assumption that 
although the court would have found a different verdict because of the 
weakness of the evidence, yet there was some evidence tending to 
establish the cause of action. ... We can perceive nothing in the 
statute thus applied which amounts to an arbitrary deprivation of the 
rights of the citizen, and concur with the Supreme court of Tennessee 
that this act, which had been in force for more than sixty years before 
the adoption of the Fourteenth Amendment, was not invalidated by it.’ 

“ The Supreme court of the United States had already, as shown in 
quotation, decided that the act could not be construed to mean that a 
third verdict must be sustained when there is no evidence to sustain it, 
and that our decisions construing it were not to the contrary up to the 
Woodson case, and that the statute must be applied to cases where 
there is some, though weak evidence, before it came to the point of 
concurring with this court in holding the act valid; that is to say, it 
held the act valid because it gave it a different and less obnoxious con¬ 
struction. It plainly showed the act to be void in the opinion, if it had 
the construction which this court had given it. To meet the difficulty 
of agreeing in the result on antagonistic opinions as to the construction, 
it held that the judgment of this court, that there was no evidence to 
support the verdict, did not mean what it said, but merely meant that 
‘ the jury ought not to have found the verdict that they did, and that 
the judgment of the court below refusing to grant a new trial upon the 
facts would have been reversed but for existence of the statute which 
made it error to award it. For/ says that court, ‘the statement in the 
judgment of affirmance of the Supreme court of Tennessee is that the 
court adjudges that there is no evidence to support the verdict of 
the jury/ and ‘if this were taken literally, it would follow that no 
recovery could be had. ,v 89,334. Railway Co. v. Mahoney , Admr'x. 1890. 

Insurance — Statutes Regulating—Liability on Policies—Valid in 
Part—Act of 1893, Ch. 107—Cotton in Bales.— BEARD, J., held that 
“ Disseizin of privileges or deprivation of property otherwise than by 
the law of the land or due process of law, is not made by Act of 1893, 
ch. 107, sec. 1, making void all stipulations in insurance policies which 
limit liability to less than the full amount of loss, if this does not exceed 
the amount of insurance. Excepting insurance upon cotton in bales 
from the provision in Act of 1893, ch. 107, sec. 1, making void all stipu- 


LAW OF THE LAND. 


45 


lations limiting liability to less than the full amount of the loss if this 
does not exceed the amount of insurance, does not make an arbitrary, 
unreasonable, and unnatural classification in violation of the Constitu¬ 
tion.” Also reaffirmed the doctrine that “a statute, unconstitutional in 
a separable and independent part, is not void in toto.” 95, 248. Dugger 
v. Insurance Co. 1895. 

Statutes Relating to Personal Property. 

Execution — Judgment Payable in Notes of Certain Banks — Art. 1, 
Sec. 21—How and When Individual Deprived of Property. —The Act of 
1819 ch. 19, sec. 1, which directed that no execution shall issue upon a judg¬ 
ment until two years after its rendition unless the plaintiff shall endorse 
upon the execution that the sheriff may receive, in satisfaction, the notes 
of certain banks was thought by counsel to be in conflict with this clause 
of the Constitution. Haywood, J.: “Property is a thing in being 
which is capable of becoming the subject of dominion or ownership, and 
which actually has a master or proprietor, and is actually reduced into 
possession. Property in possession, by this clause, is secured to the 
owner, so that it can not be taken from him but by due course of law 
in a court regularly constituted and proceeding by the standing rules of 
law; not by Act of Assembly depriving the owner of it for the benefit of 
some other individual. The State has the eminent domain or ultimatum 
dominium over all the subjects of property in its territory, and may use 
it on urgent occasions for the public good, when, in the opinion of the 
sovereign power, it is just and necessary so to use it. In the war of the 
Revolution the government authorized impressments of all things neces¬ 
sary for promoting the great cause in which it was engaged. This 
power of the legislature, by sec. 21 of our Bill of Rights, is limited in 
its exercise, though not taken away; no man’s property shall be taken 
or appropriated to public use, without the consent of his representatives, 
or without just compensation being made therefor.’ The Act of Assembly 
now under consideration takes away no property either for public or 
private use, and is, therefore, not affected either by sec. 8 or sec. 21 of 
the Bill of Rights.” 7, 18. 1 Townsend v. Toivnsend et al. 1821. 

Unclaimed Money in Clerk’s Hands—Escheat Law Constitutional.— 

McKinney, J.: “We are of opinion that the Act of 1845, the substance 
of which has been incorporated into the Code, sections 2 521, 524, is free 
from any constitutional objection. 

“Moneys, in greater or less amounts, are constantly paid into the 
clerk’s offices, which are never called for by the persons to whom they 
belong, and consequently fall to the clerk. The law in question trans- 

1 See same case, art. 1, sec. 17; art. 1, sec. 20. a T. & S., 521; M. & V., 578; Acts 1893, ch. 65. 



46 


TENNESSEE CONSTITUTIONAL LAW. 


fers these moneys to the several county treasuries. This law is based 
upon the familiar principle of the doctrine of escheat, by which the 
lands of persons dying without heirs, or for which no owner can be 
found, go to the State ; or, with us, to the common school fund. The 
same principle, we suppose, may be applied to personalty. 

“What objection can there be to such a provision? The rights of 
the persons to whom the moneys were due, should they ever appear to 
demand them, are carefully protected by the statute. No injury is 
done to them by the transfer of the fund from the clerk's office to the 
county treasury. The payment of the money, if ever called for, is at 
least as amply secured to them. Nor is any injury done to the clerk, 
of which he can be heard to complain. He has no right or claim to the 
money; and the authority of the statute is full indemnity to him against 
all future liabilities, as regards the persons to whom the moneys may 
belong, in the event they should ever appear or demand payment." 
41, 203. Deaderick v. County Court of Washington. 1860. 

Sale, After Passage of Act, of Pistols Purchased Before Passage of 
Act — Privilege License — Police Power of State.— The 'Act of March 17, 
1879, entitled “An Act to prevent the sale of pistols," was before the 
court to test its validity, under the following facts: Burgoyne is a 
merchant in the city of Memphis. Before the passage of the act quoted 
he brought to his business pistols of several kinds. His merchant's 
license had not expired at the time of importation. Subsequent to the 
17th of March, 1879, and after the expiration of the license under 
which he was operating at the date of the importation of the pistols, 
but while he was exercising merchants' privileges under a second license, 
he sold to customers pistols other than army or navy. He was con¬ 
victed and judgment arrested. The State appealed. 

Turney, J.: “If the legislature may not today pass a law to prohibit 
the sale of articles contraband of peace and good morals, because a 
man six months ago, under a different law, supplied himself with such 
articles for the purposes of sale and profit, it results that so long as the 
merchant may have, as a part of his stock, goods purchased before the 
passage of the new law, he may continue to operate under the old or 
repealed law, no matter how long the time may be between the intro¬ 
duction of the new law and the completion of the closing out sales of 
the prohibited articles. Thus the right to sell will continue for an in¬ 
definite period of time. The restrictive, or rather prohibitory power 
exercised by the legislature in this instance is a governmental one, and 
used for police purposes. Legislation for these purposes it would seem 
proper to look upon as being made in the exercise of that authority, 
inherent in every sovereignty, to make all such rules and regulations as 


1 M. & V., 5542. 



LAW OF THE LAND. 


47 


are needful to secure and preserve the public order and to protect each 
individual in the enjoyment of his own rights and privileges, by requiring 
the observance of rules of order , fairness and good neighborhood by all 
around him. This manifestation of the sovereign authority is usually 
spoken of as the police power. Cooley on Taxation, 396. The prin¬ 
ciples of this rule extend to the conference of the power of prohibition 
when, in the opinion of the legislature, prohibition is necessary to the 
attainment of its ends. ... Is the owner of the pistols deprived of the 
right of property therein? Does the act declare that the owner shall 
neither sell nor dispose of them, nor use and enjoy them ? Does it con¬ 
fiscate them and deprive him of his property without due process of 
law? We think the proviso to the statute is a full and complete answer 
to every objection suggested by the several questions. It is: ‘ Provided, 
that this act shall not be enforced against any person noiv having license 
to sell such articles, until the expiration of such present license. , This, 
in our opinion, preserves the right of property in its use, sale and enjoy¬ 
ment. All rights existiug under a license had at the passage of the law 
are expressly reserved to the merchant. We must presume the time 
allowed was ample, as the agreed state of facts makes no question upon 
it.” 75,173. State v. Burgoyne. 1881. 

Statutes Pertaining to Beal Property. 

This Section Intended to Secure to Weak and Unpopular Minorities 
and Individuals Equal Rights with the Majority— Suits Brought in Name 
of Indian Reservee to Recover Land — Partial Law.— CATRON, J.: “This 
was an action of ejectment brought by the heirs of Wally against the 
defendant, claiming the land in controversy as a reserve, by virtue of 
the Treaties of 1817 and 1819 with the Cherokees. The material ques¬ 
tion involved is this: On the trial below, the defendant proved that the 
suit was prosecuted for the benefit of another, and not the lessors of 
the plaintiff, who had contracted to convey their interest before the suit 
was brought. On this point the court charged the jury, ‘that if they 
believed the lessors of the plaintiff had sold their interest in the land 
in dispute, they must find a verdict for defendant.’ The jury accord¬ 
ingly found a verdict for the defendant. The charge of the Circuit 
court was grounded on the Act of 1827, ch. 39, passed December 6 of 
that year. This suit was commenced August 27, 1827. The act first 
provides, ‘ that interrogatories might be exhibited to the plaintiffs, and 
if it should appear that the suit was prosecuted in trust for another, it 
should be dismissed.’ This mode was not pursued; or, ‘that the 
defendant on the trial of the cause might prove by witnesses, that the 
suit was instituted or prosecuted, in whole or in part, upon a contingent 
interest, or in trust for auy other person than the one in whose name 
such suit was brought; and, if the facts should so appear from such 


48 


TENNESSEE CONSTITUTIONAL LAW. 


examination, it should operate as a bar to the recovery of the plaintiff/ 
The Act of 1827 is a partial law, applying only to suits then brought, or 
which might thereafter be brought in the name of any Indian reservee, 
to recover lands under the provisions of the Treaties of 1817 and 1819, 
between the United States and the Cherokee Nation of Indians. The 
treaties secured to the reservees the right of citizenship. Of course in 
1827 they held the same relation to the body politic, and were entitled 
to the same measure of constitutional protection, as the citizens of 
Tennessee. 

“Does that part of the Act of 1827, which declares that the suit 
shall be barred if the defendant prove it was prosecuted in trust for 
another, violate the Constitution? . . . What is ‘the law of the 

land?’ This court, on two occasions, and upon the most mature con¬ 
sideration, has declared the clause ‘law of the land’ means a general 
public law, equally binding upon every member of the community. 
The rights of every individual must stand or fall by the same rule or 
law that governs every other member of the body politic, or land, under 
similar circumstances; and every partial or private law which directly 
proposes to destroy or affect individual rights, or does the same thing 
by affording remedies leading to similar consequences, is unconstitu¬ 
tional and void. Were it otherwise, odious individuals or corporate 
bodies would be governed by one law, the mass of the community, and 
those who made the law, by another; whereas a like general law affecting 
the whole community equally could not have been passed. Vanzant v. 
Waddel. For the most lucid and conclusive exposition of this clause 
of the Constitution within the knowledge of the writer, he refers to the 
opinions of Judges Green, Kennedy and Peck, in the cause of the Bank 
v. Cooper’s Securities, at Nashville in 1831. ‘The Act of 1827 is 
peculiarly partial. It is limited in its operation to a comparatively 
small section of the State, and to a very few individuals claiming a very 
small portion of the section of country referred to.’ . . . 

“The act was intended to drive from thp courts of justice a few 
odious individuals, who it was supposed had speculated upon the 
ignorance and necessities of the Indian reservees, and fraudulently 
obtained their claims for trifling considerations, and were corruptly 
obtaining evidence to establish rights to reserves, where the Indians in 
fact never had any, to the prejudice of the purchasers from the State. 
If the supposed facts did exist, there was good cause for public indig¬ 
nation, but none for a violation of the Constitution by the passage of 
a law affecting the rights of a few individuals, but by which the great 
body of the people, or the legislators themselves, were unwilling to be 
bound. The part of the Constitution referred to was intended to secure 
to weak and unpopular minorities and individuals equal rights with the 
majority, who, from the nature of our government, exercise the legis- 


LAW OF THE LAND. 


49 


lative power. Any other construction of the Constitution would set up 
the majority in the government as a many-headed tyrant, with capacity 
and power to oppress the minority at pleasure, by odious laws binding 
on the latter. The part of the Act of 1827 above referred to is uncon¬ 
stitutional and void.” 10, 555. Wally's Heirs v. Kennedy. 1831. 

Value of This Provision in Times of High Political Excitement — 
Declaring Statutes Unconstitutional — Responsibility of Courts — Legis¬ 
lature Can Not Dispose of Estate of a Citizen — Private Act to Sell 
Land of Infants to Pay Debts They Did Not Owe, Void.— The Act of 
1825, ch. 154, enacted upon the application of the guardians of the 
complainants, authorized said guardians to sell the tract of land in 
controversy for the purpose of raising a fund to pay the debts of com- 
plaimints’ ancestor. In pursuance of its provisions they proceeded to 
sell the land, on May 18, 1826, to David and Thomas Steel, to whom a 
conveyance was made. The Steels sold to James Perry, who took 
possession of the premises, and who has since sold to James W. Wheeler. 
The bill prays that the deed to the Steels may be delivered up to be 
canceled, that the possession of the land may be delivered to complain¬ 
ants. Green, J.: “It is . . . contended that this provision of the 

Constitution was not intended to apply to a case like the present, but 
was intended to prevent majorities in times of high political excitement 
from passing partial laws, whereby to create forfeitures of estates and 
otherwise to destroy obnoxious individuals. It is true, no doubt, that 
the primary object of the framers of the Constitution was to protect 
individuals in cases like those suggested in the argument. But the 
language used is of general application, and forbids the enactment of a 
partial law by which the rights of any individual shall be abridged or 
taken away. Nor is there a single provision in our Constitution more 
salutary in its character, or that demands in its enforcement the exer¬ 
cise of greater vigilance and energy. 

“The only means by which the legislature can be kept within the 
bounds of the Constitution, in times of high political excitement, is to 
accustom its members to the restraints it imposes, and to check their 
assumption of an excess of power, promptly whenever the case occurs. 
If, when the public mind is quiet and public opinion sustains the court 
in the dispassionate and impartial exercise of its supervisory power, 
precedents of constitutional violations shall not be permitted to take 
effect, we may hope that each department of the government, accus¬ 
tomed to move in its legitimate sphere with uniformity and harmony, 
will not readily run into excess, even in times of excitement and party 
strife. Public opinion, too, accustomed to yield to the authority ol 
judicial decisions, and to sustain the courts even when they arrest the 
operation of a legislative act, will acquire a wholesome morality and a 


4 


50 


TENNESSEE CONSTITUTION A L LAW. 


firm tone, by which the courts will feel sustained and encouraged in the 
discharge of their duty should the time ever come when the sanctuary 
of justice will be the last hope of the oppressed. Every case, there¬ 
fore, where the constitutionality of a legislative act is drawn in ques¬ 
tion, is a grave and important matter, and while on the one hand the 
courts ought to entertain for the legislature the highest respect, and to 
decide against their acts only from the clearest convictions of duty; on 
the other hand, where they are clearly satisfied the Constitution is 
violated, they have no alternative but to declare that such act of the 
assembly is not law. . . . Neither the infancy of the complainants 

nor the fact that their land descended to them from their father, whose 
debts were not all paid, gave the legislature any more power to direct a 
disposition of their estate iu a manner not authorized by the general 
laws of the land than exists in that body to dispose of the estate of any 
other citizen in the same way. That the legislature has power, upon 
the suggestion that a man owes debts, to pass an act directing the sale 
of his land for their payment, no one would argue. And yet the exercise 
of such power would be less objectionable than the act in question. In 
this case the parties whose laud was sold were not indebted. It was 
not certain that the debts due from their ancestor would ever become 
a charge on their lands. By this sale, then, their real estate is taken 
away and applied to the payment of debts they did not owe — not by 
the judgmeut of their peers, not by the law of the land, but by a 
special, partial act of the legislature, applicable to their case alone/' 
18, 72. 1 Jones’ Heirs v. Perry et al. 1836. 

Grantee Neglecting- to Have His Land Processioned Under the Act of 
1819 Not Bound by Erroneous Procession Made by Surveyor; Nor is He 
Estopped from Claiming to His True Line.— TURLEY, J.: “Upon the trial 
in the Circuit court the judge charged the jury that, if a grantee of 
lands in the western district failed to have his laud processioned within 
the time prescribed by the Act of 1819, and the surveyor of the district 
caused the same to be done, and spread upon the general plan of his 
district, it would be binding and conclusive upon the grantee, and that 
he would be estopped from denying or disputing the lines thus estab¬ 
lished, although they might vary from the original and cover other and 
different lands than were covered by the original location. There was a 
judgment for the lessor of the plaintiff, to reverse which this writ of 
error is prosecuted. The question for consideration is whether the 
defendant is bound by the procession, and estopped thereby from claim¬ 
ing the land covered by his entry and grant according to their calls. 

“That the land in dispute is covered by the entry and grant of 
Joseph Greer can admit of no controversy, and of consequence he and 


1 See same case, art. 2, sec. 2. 



LAW OF THE LAND. 


51 


those claiming under him have had the legal title thereto. The question, 
then, is at once presented: If it be lost, how has it been done? It is 
not pretended it has been done by voluntary conveyance. ... It 
has not been done by the judgment of his peers, and it only remains to 
inquire whether it was by the law of the land. It is contended that the 
Act of 1819 is the law of the land, and that by a fair construction of it 
the defendant has lost his right to the land that he originally owned, 
and is compelled to take in lieu thereof other and different lands, as 
specified by the erroneous procession of the surveyor under the powers 
vested in him by the act. 

“ Whether a statute is the law of the land . . . always depends 

upon two propositions: 1st. That the legislature had the constitutional 
power to pass it. 2d. That it is a general and public law, equally bind¬ 
ing upon every member of the community. If we were to give the 
construction asked for by the lessor of the plaintiff to the Act of 1819, 
we should find it exceedingly difficult, when tested by the above propo¬ 
sitions, to declare it the law of the land. But we are relieved of the 
necessity of determining this delicate question, because we do not believe 
the construction asked for to be correct. Suppose the legislature to have 
the power to pass a statute, such as it is argued the Act of 1819 is, by 
which a freeman is to be deprived of his freehold, yet this result can not 
be produced by equitable construction, but must be by positive enact¬ 
ment. If the power exist, it is a high prerogative, and we will not 
intend that the legislature desigu to exercise it unless they say so in 
express words. No argument from policy, or inconvenience, or the har¬ 
mony of system can be permitted to have any weight in the decision of 
such a question. Has the legislature provided, then, by the Act of 1819, 
expressly that a grantee who neglects to have his land processioued as 
therein directed shall be bound by an erroneous procession made by 
the surveyor, and estopped thereby from claiming to his true line? 
Assuredly not. Indeed, if construction could be resorted to for the 
purpose of establishing this principle, it would be found exceedingly 
difficult, if not impossible, so to construe the statute. ... We then 
think the charge of the Circuit court was erroneous, because the statute 
does not expressly undertake to disseize the defendant of his freehold, 
and that, if such a thing could be done by construction, such is not the 
legitimate construction of the statute.” 21, 296. Sheppard v. John¬ 
son. 1841. 

The Constitution—Measure and Limits of its Power in This State — 
Not the Beginning of a Community—Not the Origin of Private Rights — 
Conditions Existing at Time of Formation—Right to Acquire Prop¬ 
erty_Taking Private Property for Private Use — Statutes, Public and 

Private—Descent and Distribution—Lunatic—Act of 1885, Ch. 88, Un¬ 
constitutional.— Ed. Baxter, Sp. J., held: “In Tennessee it is a settled 


52 


TENNESSEE CONSTITUTIONAL LAW. 


doctrine of constitutional law that ‘the legislative power of the gen¬ 
eral assembly of this State extends to every subject except in so far 
as it is prohibited either by the delegated powers of the federal gov¬ 
ernment or by the restrictions of our own Constitution. He who would 
show the unconstitutionality of an act of the legislature must be able 
to put his finger upon the provision of the Constitution violated/ And 
therefore the courts can not annul a statute which is free from other 
exception, upon any assumption that it is opposed to the ‘eternal prin¬ 
ciples of justice/ or to ‘natural equity/ or to the ‘inherent rights of free¬ 
men/ or to some vague and general spirit that is supposed to pervade 
the Constitution, but not expressed therein. But, ‘in considering State 
Constitutions, we must not commit the mistake of supposing that 
because individual rights are guarded and protected by them, they must 
also be considered as owing their origin to them. These instruments 
measure the powers of the rulers, but they do not measure the rights 
of the governed. A Constitution is not the beginning of a community 
nor the origin of private rights; it is not the foundation of law nor the 
incipient state of government; it is not the cause, but the consequence, 
of personal and political freedom; it grants no rights to the people, but 
is the creature of their power, the instrument of their convenience, 
designed for their protection in the enjoyment of the rights and powers 
which they possessed before the Constitution was made; it is but the 
framework of the political government, and necessarily based upon the 
pre-existing condition of laws, rights, habits and modes of thought/ 

“When the Constitution of this State was formed, ‘the right to 
acquire, to hold, to enjoy, to alien, to devise, and to transmit property 
by inheritance to our descendants in regular order and succession ’ was 
‘enjoyed to the fullness and perfection of absolute right/ and one of the 
objects of the Constitution was to protect and preserve this right. 
Act of 1885, ch. 88, changing our laws of descent and distribution with 
reference to estates of lunatics, is unconstitutional and void. That act 
provides that the personal estate of which a ‘lunatic or non compos 
mentis 1 dies intestate, if derived from an intestate husband or wife, shall 
go, not to the next of kin of such ‘lunatic or non compos mentis / as in 
case of other intestates, but to the next of kin of the person from whom 
the estate was derived. This act . . . does not deprive an intestate 

lunatic’s next of kin of property within the meaning of this constitu¬ 
tional prohibition . . . even when the act is applied to a lunatic 

who, before its passage, had acquired personal estate of an intestate 
husband or wife, and continued to be a lunatic and died intestate after 
the act had been passed. The expectancy of next of kin is not property . 

. . . But this act, ... if valid, would deprive the ‘lunatic or 

non compos mentis’ himself of that which is recognized as property 
within the constitutional prohibition aforesaid, to wit: The right to 


LAW OF THE LAND. 


53 


transmit his property by inheritance to his own descendants or next 
of kin. 

“A statute which deprives any one of property is not valid unless it 
is the Haw of the land/ This act ... is not the Haw of the land/ 
because (1) the classification upon which it is based is ‘unnatural, 
arbitrary, and capricious;’ and (2) it operates to take private property 
for private use, contrary to an implied prohibition of the Constitution. 
4 Law of the land,’ correctly defined, means a law ‘ which embraces all 
persons who are or may come into like situation and circumstances/ It 
may be made to extend to all citizens, or be confined, under proper 
limitations, to particular classes. If the class be a proper one, it matters 
not how few the persons are who may be included in it. Whether a 
statute be public or private, general or special, in form, if it attempts to 
create distinctions and classifications between the citizens of this State; 
the basis of such classification must be natural, and not arbitrary. If 
the classification is made under art. 11, sec. 8 ... for the purpose 
of conferring upon a class the benefit of some special right, privilege, 
immunity, or exemption, there must be some good and valid reason why 
that particular class should alone be the recipient of the benefit. If the 
classification is made under this section . . . for the purpose of 
subjecting a class to the burden of some special disability, duty or 
obligation, there must be some good and valid reason why that 
particular class should alone be subject to the burden. A law which 
violates any provision of the Constitution, whether the provision be 
express or implied, can not be the Haw of the laud,’ because an uncon¬ 
stitutional law is, in fact, no law at all. ‘Though the Constitution does 
not expressly prohibit the taking of private property for private use, 
yet it has been held to do so by implication,’ and therefore a statute can 
not be the Haw of the land’ which takes the private property of one 
person to give it to another for the latter’s private use.” 89, 499* 
The Stratton Claimants v. The Morris Claimants. 1891. 

Constitutionality of a Statute—Rules of Construction — Mechanics’ 
Lien Law, ’Acts 1889, Ch. 103, Secs. 1, 2, and 3 — Not Class Legis¬ 
lation. — Caldwell, J., held: “Courts indulge every reasonable intend¬ 
ment favorable to the constitutionality of a statute passed with 
the required formalities. If susceptible of two constructions, one 
that renders the statute constitutional will be preferred to another, 
though more natural, that renders it unconstitutional. Statutes upon 
trial for unconstitutionality, are entitled to benefit of every reasonable 
doubt. . . . There is no valid objection, upon constitutional grounds, 
to sec. 1, ch. 103, Acts of 1889, which provides for lien upon realty in 
favor of ‘every journeyman or other person’ who furnishes labor or 

1 Shannon's Sup. to M. & V. Code, p. 250. 


54 


TENNESSEE CONSTITUTIONAL LAW. 


material to an original contractor, to be used in putting improvements 
upon such realty under contract between him and the owner. The 
owner contracts with reference to the law which gives the lien for work 
and labor furnished to his contractor by journeymen and others. The 
provision of sec. 1 of said act, allowing the ‘laborer, mechanic or 
workman 7 thirty days ‘after the building is completed, or the contract 
of such laborer, mechanic, or workman shall expire, or he be discharged,' 
in which to give the owner written notice that a lien is claimed for such 
labor and material as have been furnished the contractor, does not 
render the act unconstitutional. The owner may, by contract or indem¬ 
nity bond, protect himself against double payment for such labor and 
material. 

“There is no valid objection upon constitutional grounds, to sec. 2, 
which, properly construed, authorizes every mechanic, laborer, and 
furnisher to take and remove, under the direction of a court, after giv¬ 
ing ten days 7 notice, to the owner, of his purpose to do so, all ‘such 
property or the parts of the same on which his labor was performed, or 
materials, machinery, or other property was used, 7 at the request of a 
contractor for the owner’s benefit, when such improvements have been 
made upon the lands of a married woman, or other persons under disa¬ 
bility, or upon trust estates, or upon lands held by other superior title, 
or subject to prior liens, and the mechanic, laborer, or furnisher was 
ignorant of the state of the title and the true owner refuses to recognize 
the lien or claim for the materials furnished or labor performed. 

“Sec. 3, permitting the owner who has been compelled to pay his 
contractor’s employees in discharge of their lien on the property, to 
take judgment over against the contractor upon his indemnity bond 
upon mere motion, is valid and constitutional. Although notice to the 
contractor of this motion is not expressly provided for in the act, it is 
required by necessary implication. This provision of sec. 3 of said act 
does not constitute vicious class legislation. 90, 466. l Cole Manu¬ 
facturing Co. v. Falls. 1891. 

Statutes Governing Taxation. 

Vital Principle of All Regular Governments Is a Revenue to Support 
its Existence—May be Raised by Summary Method of Taxation.— 
Overton and White, J. J.: “A summary mode of levying taxes on lands 
had been in existence previous to, and at the time of, the formation of 
the Constitution. It was manifestly the intention of the convention 
that summary proceedings, such as the people had been accustomed to, 
should not be inhibited. The expression used in the Constitution, ‘law 
of the land, 7 communicates the idea of such proceeding of the courts as 


1 See same case, art. 2, sec. 17. 



LAW OF THE LAND. 


55 


had been customary, or should thereafter be provided conformable to 
the spirit of those habits, and of the common law. See 2 Hay., 142, 
320, 322. The Constitution has no effect on these proceedings. The 
first and vital principle of all regular governments is a revenue to sup¬ 
port its operation and existence. Without it the government must soon 
perish. All governments to raise this revenue, lay taxes on property, 
and their proceedings necessarily must be .summary and in rem as to 
that. Acts made for the attainment of these essential objects of the 
State must receive such construction as will effectuate the intention of 
the legislature, where it is uot opposed by the provisions of the Consti¬ 
tution, or restricted in the effect by legal principles applicable to the 
proceedings necessary to carry into effect that intention.” 6, 255. 
McCarrol’s Lessee v. Weeks. 1814. 

Old Definition of “Law of the Land” Adhered To—Act Directing 
Refunding of Taxes to Certain Individuals Violates Art. 11, Sec. 8 and 
This Section. — Nicholson, J.: “On the 8th of Juue, 1865, the legisla¬ 
ture passed an act releasing the people of the State from the payment 
of the State taxes for the years 1862, 1863 and 1864; provided , that 
nothing in the act was to be construed to refund to the people any 
taxes already collected for those years. This was a general law appli¬ 
cable to all the counties, and was therefore obnoxious to no constitu¬ 
tional objection. By this law the State taxes already collected were not 
to be refunded to those who paid them, but continued to constitute part 
of the revenue of the State, subject to be collected from the several 
collectors in pursuance of the existing provisions of the laws on this 
subject. 

“But by the Act of February 10,1868, the county of Roane is singled 
out, and the amount of the State revenue in the hands of the repre¬ 
sentatives for the collector of that county is directed to be diverted 
from the State into the county treasury, and then to be refunded to 
those from whom it was collected. . . . The general law appro¬ 
priates the taxes collected in 1864 in the various counties of the State 
to the general purposes of the government, as State revenue. This act 
suspends this general law as to Roane county; and for the benefit of 
the individuals who paid these taxes in that county, directs them to be 
refunded to them. In other words, the act undertakes to donate to 
certain individuals in Roane county, out of the treasury of the State, the 
several amounts paid by them into the treasury in 1864, but confers no 
such benefit on the other individuals in other counties of the State who 
had made like payments into the treasury. The statement of the prop¬ 
osition exposes its unconstitutionality without further remark or argu¬ 
ment. 


56 


TENNESSEE CONSTITUTIONAL LAW. 


“But, in the next place, it is insisted that the other provisions ot 
the act by which it is directed that the chairman of the County court 
shall call the administrator to a settlement, and on his failure, shall 
move for judgment in the name of the State for the use of the county, 
are alike unconstitutional, because in violation not only of the eighth 
section, art. 11, . . . but of sec. 8 of art. 1. . . . It is settled 

by a long train of decisions in our State, that the Maw of the land* is ‘a 
general and public law, equally binding upon every member of the 
community.’ It is too clear to require argument that the Act of 
February 19, 1868, secs. 30, 31, 32, 33 and 34, can not be regarded as 
the law of the land.” 53, 188. State v. Burnett , admV, etc. 1871. 

Distress Warrants Due Process of Law. —This suit involved the 
validity of the Act of March 23, 1875, entitled “An Act to extend the 
time in which to collect taxes assessed for the year 1874 and for the 
relief of the people.” Nicholson, J., quotes from the opinion of Justice 
Curtis, 18 How., 282, and says: “The question, involved in the case in 
which these remarks were made, was, whether a distress warrant issued 
by the solicitor of the treasury was valid ‘process.’ The warrant was 
authorized by an Act of Congress, passed in 1820. The objections to the 
validity of the warrant raised the question, whether, under the United 
States Constitution, a collector of customs, from whom a balance of 
accouut had been found to be due by accounting officers of the treasury, 
can be deprived of his liberty or property, in order to enforce payment 
of that balance, without the exercise of the judicial power of the United 
States, and yet by ‘due process of law,’ within the meaning of those 
terms in the Constitution; and if so, whether the warrant in question 
was such due process of law? In discussing these questions, Justice 
Curtis refers to precedents furnished by the History of England, as to 
the mode of collecting claims due to the government, and says: “We 
apprehend there has been no period, since the establishment of the 
English monarchy, when there has not been, by the law of the land, a 
summary method for the recovery of debts due to the crown, and 
especially those due from receivers of revenue.’ 

“He concludes that the methods of ascertaining and enforcing debts, 
found to be due to the government, have varied widely from the usual 
course of the common law on other subjects; and that, as respects 
such debts due from such officers, ‘the law of the land’ authorized the 
employment of auditors, and an inquisition without notice, and a species 
of execution bearing a very close resemblance to what is termed a 
warrant of distress in the Act of 1820, then in question. 

“He adds: ‘It is certain that this diversity in the law of the land, 
between public defaulters and ordinary debtors, was understood in this 
country, and entered into the legislation of the colonies and provinces, 



LAW OF THE LAND. 


57 

and more especially of the States, after the Declaration of Independence, 
and before the formation of the Constitution of the United States/ 

“Tested by the common and statute law of Eugland, prior to the 
immigration of our ancestors, and by many of the States at the time of 
the adoption of the Fifth Amendment to the United States Constitution, 
the proceedings under the Act of Congress of 1820, were held to be ‘due 
process of law/ For though ‘due process of law’ generally implies and 
includes actor , veus, judex , regular allegations, opportunity to answer, 
and a trial according to some settled course of judicial proceedings, yet 
this is not universally true. ‘There may be, and as we have seen/ says 
Justice Curtis, ‘there are cases, under the law of England after Magna 
Charta, as it was brought to this country and acted on here, in which 
process, in its nature final, issues against the body and goods of certain 
public debtors without any such trial/ . . . Applying the doctrines 

of the court, in the case from which we have been quoting, as to the 
true meaning of the words ‘law of the land’ used in the Constitution, 
we must regard it as authority for holding, that our statutes which 
authorize the ascertainment of the amount of taxes due from each 
citizen, and the issuance of a distress warrant to enforce the same, 
against such as fail or refuse to pay the taxes assessed, are constitu¬ 
tional and valid.” 55, 559. 1 Myers v. Pari:. 1875. 

Statutes Relating to Remedies. 

Remedies — Redress — Existing Liabilities — Partial Laws — Law of 
the Land—Definition of.—C atron, J.: “The question presented by the 
record is, has the legislature power to direct the mode by which mem¬ 
bers of a particular corporate body may be notified to appear before the 
ordinary tribunals of the country, to be proceeded against according to 
the public and general laws of the laud? That a partial law, tending 
directly or indirectly to deprive a corporation or an individual of rights 
to property, or to the equal benefits of the general and public laws of 
the land, is unconstitutional and void, we do not doubt. Our entire 
approbation is accorded to the decisions cited in the causes of Dart¬ 
mouth College v. Woodward, 4 Wheat. Rep., 518, and Holden v. James, 11 
Mass., 396. The clause, ‘law of the land/ means a general and public 
law, equally binding upon every member of the community. Our 
colonial history will best teach its meaning. Our ancestors were taught 
it by being transported across the Atlantic for trial, by the Boston port 
bill, and other British legislation. A careful examination of Marshall’s 
History of the Colonies, particularly the thirteenth and fourteenth chap¬ 
ters, and of Smollett’s and Bissett’s History of England, especially vol. 
1, ch. 12, of the latter, will greatly tend, it is apprehended, to change 
the opinion of the counsel of the plaintiff, who contended in argument, 


See same case, art. 2. sec. 28. 



58 


TENNESSEE CONSTITUTIONAL LAW. 


that this term had no definite meaning; at least not the one here 
ascribed to it; and that it answered no useful purpose in the Constitution. 
Notwithstanding the provision, is it to be supposed the legislature, 
equally with the governments of France, Russia or Turkey, is sovereign 
in this respect, even retaining the powers of individual proscription 
extending to banishment, as well as power to legislate partially in refer¬ 
ence to particular individuals, affecting their rights by partial and extra- 
ordinary remedies ? 

“The right to life, liberty and property, of every individual, must 
stand or fall by the same rule or law that governs every other member 
of the body politic, or ‘land/ under similar circumstances; and every 
partial or private law, which directly proposes to destroy or affect indi¬ 
vidual rights, or does the same thing by affording remedies leading to 
similar consequences, is unconstitutional and void. Were this otherwise? 
odious individuals and corporate bodies would be governed by one rule, 
and the mass of the community who made the law, by another. The 
idea of a people through their representatives making laws whereby 
are swept away the life, liberty and property of one or a few citizens, 
by which neither the representatives nor their other constituents are 
willing to be bound, is too odious to be tolerated in any government 
where freedom has a name. Such abuses resulted in the adoption of 
Magna Charta in England, securing the subject against odious excep¬ 
tions, which is, and for centuries has been, the foundation of English 
liberty. Its infraction was a leading cause why we separated from that 
country, and its value as a fundamental rule for the protection of the 
citizen against legislative usurpation was the reason of its adoption as 
part of our Constitution. See 2 lust., 46, and the Declaration of Amer¬ 
ican Independence. 

“A general and public law, prescribing remedies and modes of 
redress to enforce existing liabilities, can certainly be constitutionally 
passed. 4 Munf. Rep., 109; 4 Wheat. Rep., 200, 207. 

“Can the same be done by a partial or private law? This can as cer¬ 
tainly not be done, if the measure of justice to be administered is not 
according to the public laws of the land. Yet, nothing can be seen in 
the present record which did, or by possibility could, impair the right of 
the defendant, or deprive him of the power to defend the action otherwise 
than as such rights were governed by the general laws of the land 
previous to the passage of the Act of 1821. Nor can it be seen tbat 
any constitutional prohibition stood in the way of the legislature, to 
prescribe the time when the notice should be given and examination 
taken. The contract was enforced, in point of fact, under the Act of 
1811, and the mere time of the defendant’s appearance conformably .to 
the notice, did not deprive him of the full benefit of the general laws of 


LAW OF THE LAND. 


59 


the country in resisting the claim.” Whyte, J., concurred. Judgment 
affirmed. 10,270. 1 Vanzant v. Waddel. 1829. 

Corporation Can Not Complain at Remedies Provided By Itself.— 
Green, J.: “Where a charter of a corporation provides a remedy in 
favor of the owners of land taken by the corporation, the company 
accepting the charter can not complain that it is a partial law and not 
the law of the land.” 27, 481. Nolensville and Nashville Turnpike 
Co. v. Quinby. 1847. 

Municipal Corporations — Ordinances . 

Taxing Districts — Statutory Exemption From Liability for Defects 
in Streets—Partial Laws — When Violative of This Section and When 
Violative of Art. 11, Sec. 8.— By the Act of 1881, ch. 96, the original 
Taxing District Act, section 19, was amended so as to read: “That the 
counties in which taxing districts are situated, and the taxing districts 
themselves, shall not be liable for damages or injuries to persons or 
property by reason of defects in the streets or alleys, or other property 
under the control and within said taxing districts,” etc. The plaintiff 
contended that this act was in violation of art. 11, sec. 8, of the Cousti- 
tution. Cooper, J.: “The cases cited by the learned counsel, in his 
argument in support of this contention, are cases of partial laws, which 
were held to be violate of art. 11, sec. 8, of the Constitution. And it is 
very true that a provision of a municipal charter, which undertakes to 
make a law for, or in regard to, that municipality different from the 
general law, or to withdraw from the operation of a general law, 
applicable to all municipal corporations, a particular corporation, or 
class of such corporations, would be obnoxious to the clause of the 
Constitution last cited, because not the law of the land. Mayor of Alex¬ 
andria v. Dearmon, Hatcher v. State, 12 Lea, 368. But the particular 
franchises or rights granted to municipal corporations have never been 
held to fall within the prohibition of art. 11, sec. 8. For such franchises 
are extended to any member of the community who may become a 
member of the corporation. And, besides, such a construction of that 
provision of the Constitution would deprive the legislature of the 
power to make exceptional provisions for particular municipalities, or 
classes of municipalities. There is no statute or other law making all 
municipal corporations liable for neglect of its streets, but only a con¬ 
sensus of decision that such corporations possessing certain powers 
should be liable. The simple question there is, whether the legislature 
can so limit the rights and privileges of an incorporated town or city 
in the matter of local taxation as to leave it in the category of a county, 
and thereby make it an agency of the State in the matter of its public 


1 See same case, art. 1, sec. 6, p. 15; art. 1, sec. 20. Meigs’ Dig., vol. 2, p. 929. 



60 


TENNESSEE CONSTITUTIONAL LAW. 


streets, and not in that respect a complete municipal corporation, in 
the ordinary meaning of those words. But we have already held that 
the legislature might, constitutionally, reserve to itself the power of 
levying the taxes of this corporation. And it is very clear that the cor¬ 
poration is so restricted in the use of the proceeds of the special taxes, 
assessed by the legislature, and so totally deprived of the power of 
taxation to meet any liability for injuries, as to show a plain legislative 
intent that the corporation shall not be liable.” 84, 531. 1 Williams v. 

Taxing District. 1886. 

Old Definition of “Law of the Land” Repeated — Penalty Against 
Sheriff of Only One County—Special Act — Repeal of Statute—When it 
Will Not Be implied.— Caruthers, J.: “This action was brought to 
recover a penalty of fifty dollars from the defendant for failure to hold an 
election for officers of the corporation of Alexandria, on the second Mon¬ 
day of February, 1852, as required by the charter of said town. A recovery 
was had before the justice of the peace, but on appeal to the Circuit 
court the plaintiff failed, upon the ground that the judge charged that 
the provision in the charter by which the penalty was created had been 
repealed by the Act of 1849-50, ch. 17, sec. 16. The Act of 1847-48, 
ch. Ill, sec. 10, makes it the duty of the sheriff of DeKalb county to 
hold the election for town officers, aldermen, etc., on the second 
Monday of February of each and every year, and 4 for failure to hold 
said election, or causing the same to be done, said sheriff shall forfeit 
and pay the sum of fifty dollars, to be recovered by action of debt, 
before any justice of the peace for DeKalb county, in the name of the 
mayor and aldermen, for the use of said corporation of Alexandria.’ 
In 1849-50 a general act was passed, providing for holding the election 
for officers of town corporations at any other times than those pre¬ 
scribed in the charters, if omitted, for any cause, to be held on the 
charter days, and giviug validity to such elections. 

“The argument made is that the reason and cause of the penalty in 
the Act of 1848 was that, if the officers were not elected on the day 
designated by the charter, no subsequent election would be valid, and 
that as this difficulty was removed by the Act of 1850, it was an implied 
repeal of the penalty. And so the law was charged by the circuit judge. 
We can not concur in this reasoning or conclusion. The two acts can 
well stand together; they are perfectly consistent with each other. It 
is no sufficient argument in favor of an implied repeal of an act of the 
legislature that some of the evils provided against are subsequently 
removed. The penalty is for a failure of duty in a public officer. Some 
of the consequences of that neglect to the injury of the public are 
removed by a subsequent act, but the duty still remains, as well as the 


1 See same case, art. 1, sec. 17. 



LAW OF THE LAND. 


61 


prescribed penalty for neglect. Cooke, 338. But the Act of 1835, ch. 
49 (C. & N., 277), is of the same purport as the Act of 1850. But upon 
another ground, assumed in argument, we think the judgment below 
must be sustained. The clause in the Act of 1847-48, upon which this 
action is founded, is not * the law of the land/ and therefore can not be 
enforced without an infraction of the constitutional rights of the 
defendant. The principles settled in the case of Budd v. The State, 3 
Humph., 490, are, as we think, conclusive in their application to this 
case. . . . The meaning of the phrase, Haw of the land/ is so fully 

expounded in the case above cited, aud the previous cases of Vanzant 
v. Waddel, and Walley’s Heirs v. Kennedy, and the Bank of the State v. 
Cooper, and the case of Officer v. Young, that it would be unneces¬ 
sary now to dwell upon that subject, as no additional light can be shed 
upon it. Nothing is left to be done but to apply the principles so well 
settled to new cases as they may arise before us. 

“The ‘law of the land/ then, in the sense of the Constitution and in 
reference to the acts of the legislature, is an act which extends to and 
embraces all persons who are, or may come into, the like situation and 
circumstances. There are more than seventy sheriffs in the State. 
This Act of Assembly prescribes a penalty against the sheriff of DeKalb, 
or ‘ deprives him of his property’ for not performing a certain duty. To 
make this legislation the ‘law of the land’ it would have to be applied to 
all other sheriffs in the State of whom the like duties are required. The 
act, then, does not apply to and affect all persons or officers who are, or 
may be, in the same situation and circumstances, and is therefore partial 
and limited in its operation, and consequently not the ‘law of the land’ 
in the sense of our Constitution. It is no answer to this objection that 
the penalty complained of is prescribed in a charter of incorporation, 
and is for that reason saved from a constitutional inhibition.” 34,120. 
Mayor etc. of Alexandria v. Dearmon. 1854. 

Power to Create Municipal Corporations Would Exist Without 
Express Authority of the Constitution — Theory Upon Which They are 
Established — Powers to Enforce Penalties. — SMITH, J., held: “City 
ordinances prescribing pecuniary penalties for infraction of the same, 
and the court wherein, and the iqpde of procedure whereby, their ordi¬ 
nances are enforced, are not obnoxious to the constitutional rule known 
in Tennessee as the ‘law of the land/or to any other constitutional 
provision. The power of the legislature to enact municipal corpora¬ 
tions, is authorized by the Constitution; and without such express 
authority, no doubt could be raised or entertained, of the existence of 
the power. Municipal corporations, as a means of local government, 
existed before the Constitution was formed, and have been established 
during the whole existence of the State, aud were governmental insti¬ 
tutions derived from the country from which we took our origin. 


62 


TENNESSEE CONSTITUTIONAL LAW. 


“Laws and regulations adequate to protect the safety, health, com¬ 
fort and good neighborhood of people in rural districts, are utterly 
insufficient for such purpose in the cities. Numberless acts and negli¬ 
gences of men in the country, which are harmful to nobody, are greatly 
dangerous and injurious to the inhabitants of cities. Hence the neces¬ 
sity and sanction of particular and minute regulations prescribed by 
municipal governments, touching and penetrating the life and conduct 
of persons in cities, which are unnecessary, and would be intolerable, 
to enact and enforce upon the inhabitants of the country. Ordinances 
and by-laws of this kind, are enacted for the government of men in 
cities, and have been so done in all the States of the Union, from the 
first colonization of the country, and have been so done in England 
from the earliest period of its known history. These ordinances, though 
peculiar to the municipality which enacts and enforces them, and though 
different from the general laws of the State, applicable to all people of 
the State, have never, for such reasons, been supposed to be invalid. 
They have not been deemed obnoxious to the objection of being partial 
laws, or not laws of the land. 

“On the contrary, they are regarded with particular favor. The 
fundamental and distinctive principle of English and American govern¬ 
ment is, to decentralize administrative and legislative power. To the 
general or central government, is bestowed the enactment and execu¬ 
tion of laws which concern the people generally of the whole State, and 
which are properly and beneficially applicable to the whole people. To 
the local and small subdivisions and districts and communities of the 
people, are confided the exercise of the powers of legislation and 
administration, suitable to the peculiar needs and purposes of those 
small localities. Government organized upon this principle, is sup¬ 
posed to be more consonant with the freedom of the people, and better 
adapted to promote the safety and prosperity of the people, than where 
the legislation and administration are remote, and concentrated in the 
hands of the central authorities. However this may be, local govern¬ 
ment and local regulations, and especially municipal incorporations and 
powers, are special and established and legitimate agencies, and exer¬ 
cise of governmental power in the State of Tennessee.” 46, 382. 

’ Trigally v. Mayor etc. of Memphis. 1869. 

Municipal Corporation May, By Ordinance, Assess Tax to Maintain 
School System, and Take Property in Way of This Tax — Consent of 
Representatives—Act of 1885, Ch. 37.— COOPER, J. : “Something is said, 
both in the bill and in the argument in support thereof, about the Act 
of 1885 violating the Constitution, art. 1, sec. 8, . . . and sec. 21 

of the same article, that no man’s property shall be taken and applied 


1 See same case. See index for section and page. 



LAW OF THE LAND. 


63 

to public use, ‘ without the cousent of his representatives/ or just com¬ 
pensation. But if the establishment and support of a system of public 
schools is a corporation purpose, and the Act of 1885 was constitu¬ 
tionally enacted by the legislature, and the ordinance based thereon was 
properly passed by the municipal authorities, then the property of the 
complainants taken in the way of taxes to support the system would be 
taken by the law of the land, and with the consent of their representa¬ 
tives, first in the legislature and again in the city council.” 83, 645. 
1 Ballentine v. Mayor etc. of Pulaski. 1885. 

Extending Boundaries — Special Laws Not Deprivation of Liberty or 
Property.— The act under consideration was that of 1890 (ex. sess.) 
ch. 33. Caldwell, J., held: “A special law extending territorial limits 
of a municipal corporation does not operate to deprive the owners of 
the included property either of liberty or property, aud does not there¬ 
fore violate,” art. 1; sec. 21, nor this section, nor the United States Con¬ 
stitution, Fifth Amendment. 89, 487. * 2 * Williams v. Mayor etc. of 

Nashville. 1891. 


‘See same case, art. 2, sec. 2; art. 2, sec. 17; art. 8 See same case. art. 2, sec. 2: art. 2, sec. 19: 

2, sec. 28; art. 2, sec. 29; art. 11, sec. 8: art. 11, sec. 8. 

art. 11, sec. 12. 



64 


TENNESSEE CONSTITUTIONAL LAW. 


CRIMINAL PROSECUTIONS —RIGHTS OF THE ACCUSED. 


To Be Heard by Himself and Counsel. 

PAGE 

Defendant Himself May Address Jury- 
Reasons for Provision—Not a Com¬ 


mon Law Right—Reasons Why,_ 65 

Heard by Counsel—Meaning of. 68 

Attorneys for State—Number—Discretion 

of Court. 65 

Putting Defendant Under Rule When Co- 

Defendant Testifies, Erroneous. 69 

Absence of Defendant When Venue 

Changed. 6S 


To Demand Nature and Cause of Accusa¬ 
tion and Copy of Indictment. 

This Right Not Restricted to Capital Cases.. 70 
Accusation — How Prescribed — Right of 

Accused to Copy. 69 

Nature and Cause—Indictment Must State 

Facts—Justice of the Peace. 70 

Indictment Need Not State Venue—Proof 

Must Show this. 70 

Copy of Indictment—Failure to Furnish— 

Record Must Show. 70 

Copy of Indictment—Object of this Clause 
—Essential Requisites of a Criminal 

Charge. 71 

Indictment May be Read from Minute 

Book. 70 

Entitled to Copy Two Days Before Trial. . 69 

To Meet Witnesses Face to Face. 

This Clause Applies to State’s Witnesses 

Only. 76 

Depositions Taken Before J. P. Admissible 
—English and North Carolina Prac¬ 
tice. 71 

Affidavit of Witness—When Evidence. 76 

Affidavit of Witness—Admission by Attor¬ 
ney General—Continuance. 72 

Dying Declarations—Compulsory Process- 

Purposes of this Clause. 73 

Deceased Witness—Evidence in Criminal 

and Civil Cases—English Rule. 74 

Deposition of Deceased—Admissible, when. 73 
Official Records, etc.—When Copies Not 

Admissible—Perjury—Forgery. 76 


To a Speedy Public Trial by An Impar 
tial Jury. 


PAGE. 

Evidence—Prima Facie—What Shall be_ 12 

How Far this Right Extends. 5 

Undue Excitement—Venue—Duty of Court 

to Change. 76 

Jurors —Acts Disqualifying Because of 

Political Opinions, Void. 77 

Juror—Newspaper Accounts will Disqual¬ 
ify, when—“ Impartial Jury” De¬ 
fined—Impartial Juror, Who is— 

History of this Clause. 78- 

Jury—Selection from Portion of County- 

Special Act. 81 

Acquittal of Defendant—No Appeal by the 
State. See State v. Solomons , Art. 1, 

Sec. 10. 


Of the County in Which the Crime Shall 


Have Been Committed. 

This Right Can Not be Infringed Upon by 

the Legislature.. 81 

Jurisdiction of a County—What Gives—Bill 
of Exceptions Must Show Venue— 

Judicial Construction. 82 

Accessory Before the Fact, Venue of. 82 

Boundary of County—Change in—Trial in 
County Having Present Jurisdiction 

—Personal Right. 82 

Extending Jurisdiction Over Crime—Act 
Providing, Void—This Clause for 

Benefit of Accused. 83- 

Offenses Committed Beyond the State—U. 

S. Constitution. 85- 

Change of Venue from One County to 

Another—Act Providing, Valid_ 86 

Change of Venue Against Consent of De¬ 
fendant-Act Allowing, Void. S7 

Judge—Discretion Vested by Statute. 88 

Change of Venue—Defendant Must Con¬ 
sent to. 82 


And Shall Not Be Compelled to Give 


Evidence Against Himself. 

Testimony Before Grand Jury—Compelling 
Witness to Testify Against Himself 

—Common Law Rule. 89 

Failure of Defendant to Testify—Adverse 

Comment Upon. 92 


Art. 1, Sec. 9. That in all criminal prosecutions the accused 
hath the right to be heard by himself and his counsel; to demand 
the nature and cause of the accusation against him, and to 
have a copy thereof; to meet the witnesses face to face; to have 
compulsory process for obtaining witnesses in his favor; and 
in prosecutions by indictment or presentment, a speedy public 
trial by an impartial jury of the county in which the crime shall 
have been committed, and shall not be compelled to give evi¬ 
dence against himself . 1 [Same as Const. 1796, art. 11, sec. 9. Same as 
const. 1834, art. 1, sec. 9, except that the words ‘‘or district” appear after 
the word “county ” in that instrument.] 


oo o£ 0r PI unimportant references to this section see 16 , 535 : 20 , 291; 
33, 217; 37, 361; 40, 130; 50 , 276, 336, 407 ; 65, 507 ; 67 , 362 ; 79 , 708, 712 ; 81, 472. 


22 , 344 ; 31, 65;. 











































RIGHTS OF THE ACCUSED. 


65 


To Be Heard By Himself and Counsel. 

Assistant Attorneys for State — Number — Discretion of Court.— 
Turley, J.: “ The appearance of more than one attorney on each side of a 
case is a matter within the discretion of the court. Every man has a right 
to be heard by attorney, but not by more than one, unless by permission, 
and a refusal is no cause of error, for which a judgment can be reversed. 

“In the case of Gillespie v. The State, 3 Yerg., 325, it is said that the 
State may employ a licensed attorney of the court to assist in the pros¬ 
ecution, but that if it be required, he must produce his authority. We 
do not concur in the opinion announced in the latter part of this sen¬ 
tence. The attorney general represents the State; he institutes the 
proceeding, and is responsible for the manner in which it is conducted. 
He must be heard. The court has no power to refuse him. He must 
have been legally appointed, and the court have a right to the evidence 
of his appointment. But as has been observed, if a licensed attorney 
appear as an assistant, he may be heard or not, at the discretion of the 
court, with or without authority, if the attorney general consent.” 22, 
241. Chambers v. The State. 1842. 

Not a Common Law Right—Reasons Why — Reproach to the Crim¬ 
inal Jurisprudence of England — Remedied by State Constitutions — 
Reasons Why — Defendant Himself May Address the Jury.— SNEED, J.: 
“The right of a prisoner to be heard by himself and his counsel is only 
guaranteed by the State Constitution. It will be observed that the Con¬ 
stitution of the United States gives him the right to have the assistance 
of counsel in his defense, while the Constitutions of the other States of 
the Union give him the right to be heard by himself or his counsel. It 
was not among the boasted liberties of the English subject, vouchsafed 
by Magna Charta, that a prisoner could either be heard in his own 
defense by himself or his counsel. The great guaranty, that ‘no freeman 
shall be taken or imprisoned, or disseized Horn his freehold or liberties 
or immunities, nor outlawed, nor exiled, nor in any manner destroyed; 
nor will we come upon him or send against him, except by legal judg¬ 
ment of his peers or the law of the land; we will sell or deny justice 
to none, nor put off right or justice; 7 though it secured to the English¬ 
man the right of trial by jury, and~ is the chief cornerstone of the solid 
fabric of British freedom which exists at this day, and the foundation 
of our own fervid liberty, was yet wanting in some humane provision by 
which the unfortunate citizen accused of felony or treason, might have 
an opportunity of showing his innocence otherwise than by the failure 
of the king to demonstrate his guilt. It was a strange and notable 
inconsistency in English criminal jurisprudence that would shield a 
prisoner as he sat isolated in the dock with the presumption of inno¬ 
cence, and would yet forbid him for so many centuries—except as a 


5 


66 


TENNESSEE CONSTITUTIONAL LAW. 


matter of grace — to utter a word by counsel iu his own defense, or to 
have the assistance of counsel in marshaling his proof to make good the 
presumption that mocked him with the illusion that English justice was 
tempered with mercy. It was reserved to the vigorous Anglo-Saxon of 
another hemisphere to assert and maintain the invaluable right thus 
ignored by the Barons at Kunnymede, that the citizen accused of crime 
should have his own advocate and counsellor to vindicate his innocence, 
as well in matters of fact as matters of law, and to see to it that he 
should not be taken, or imprisoned, or disseized of his liberties, or out¬ 
lawed, or exiled, or in any manner destroyed, except by the judgment 
of his peers or the law of the land. It was within the last half century 
that the Act of 6 and 7, W. 4, ch. 114, was enacted by the British Parlia¬ 
ment, entitled ‘An Act for enabling persons indicted of felony to make 
their defense by counsel or attorney. 7 The first section provides that, 
‘all persons tried for felonies shall be admitted, after the close of the 
case for the prosecution, to make full answer and defense thereto, by 
counsel learned in the law, or by attorneys, in courts where attorneys 
practice as counsel. 7 By the second section, it is further declared and 
enacted that, ‘in all cases of summary convictions, persons accused 
shall be admitted to make their full answer and defense, and to have 
all witnesses examined and cross-examined, by counsel or attorney. 7 
2 Lewin 7 s Crown Cas., 262. 

“‘At common law, 7 said Sir William Blackstone, ‘it is a settled rule 
that no counsel shall be allowed a prisoner upon his trial, upon the 
general issue in any capital crime, unless some point of law shall arise 
proper to be debated. A rule, 7 he says, ‘which, however it may be 
palliated under cover of that noble declaration of the law, that the 
judge shall be counsel for the prisoner, seems to be not at all of a piece 
with the rest of the humane treatment of prisoners by the English 
law. 7 2 Bl. Com., 285. 

“But Sir Edward Coke gave a reason for the refusal of counsel: 

‘ Because the evidence to convict a prisoner should be so manifest, as it 
could not be contradicted. 7 3 Inst., 137. Which Lord Nottingham 
declared, ‘ was the only good reason that could be given for it. 7 3 St. 
Tr., 726. While this rule of the English common law that refused the 
assistance of counsel in matters of fact to a prisoner indicted of treason 
or felony, was abrogated by statute, as to treason, in the reign of 
William III, yet, though greatly modified in practice, it continued to be 
the rule in felonies until the statute of W. 4, ch. 114, already cited. 1 
Chitty Cr. L., 410. It was in view of this state of the common law in 
England upon this question, which was not only a reproach to the crim¬ 
inal jurisprudence of that country, but was in derogation of the prin¬ 
ciples of Magna Charta itself, and opposed to all the traditions of English 
liberty, that the invaluable right of a prisoner to be heard by counsel 


RIGHTS OF THE ACCUSED. 


67 


was incorporated in the fundamental law of this country; and his right 
to be heard by himself, and his counsel, was engrafted upon the organic 
law of this State. And the question now recurs, what is the meaning 
of those words in the Constitution of Tennessee, that the prisoner 
shall have the right to be heard by himself and his counsel? 

“Do they mean, as it is intimated at the bar, that the court below 
interpreted them in this case, that the prisoner cau only be heard as an 
advocate in his own behalf in the presentation of the law and the facts 
of his case to the jury; or do they mean that he can make such an 
explanation of the circumstances which have been proven against him 
as he may see proper, in order to elucidate their effect, and to solve 
them into consistency with the hypothesis of innocence? They certainly 
do not mean that he may become a sworn witness in his own behalf; for 
the moment he becomes a witness in the cause, he becomes, under the 
rules of law, subject to cross-examination, and all the usual expedients 
for testing the verity of his statements; and the very section which 
gives him the right to be heard by himself or his counsel, forbids that 
he be compelled to testify against himself. . . . While it is true 

that, as a general rule, legislative construction of a statute is not of 
much weight, yet, under all the circumstances connected with the intro¬ 
duction of the statutes upon this subject into the 1 Code, we are of opin¬ 
ion that these statutes have correctly interpreted the right of the 
prisoner in this respect, as indicated in the directions of the magistrate 
to the prisoner, as already cited, or so much thereof as admits an 
explanation of the facts in testimony against him, and that such was 
the legislative construction of the constitutional provision. . . . We 
are of opinion that the prisoner in all criminal prosecutions, after the tes¬ 
timony has been heard for and against him, has a right to be heard in an 
argument in his own behalf and as his own advocate, or in an explana¬ 
tion of the circumstances which have been testified against him; that 
it is error to deny him this right; that in such case he is not to be sworn 
or cross-examined as a witness; but that a jury may consider a clear, 
consistent refutation of guilt to be deduced from an argument which 
explains, to their satisfaction, the circumstances of suspicion by which 
the prisoner was before complicated; or they may pay no attention to 
it whatever. It is not testimony, in its legal sense, but the logic of 
facts, which, operating upon a mind in quest of the truth, induces an 
honest conviction that the cloud of guilt which had been generated by 
the evidence in the cause has been dissipated and removed by the 
explanation of the prisoner. If he wishes to submit an argument upon 
the case, he has a right to do so; or, if he would simply explain the 
facts already in testimony, then he may do so. In other words, the 
Constitution guarantees to every prisoner the right to explain the case 


1 Code, 1858, 4992; T. & S M 4992; M. & V., 5317. 



.68 


TENNESSEE CONSTITUTIONAL LAW. 


made against him in his own way. He may waive the right if he 
chooses, but no court can deprive him of it. If he demands it, the 
court should at once instruct him that he may make an argument or an 
explanation of the circumstances proved against him, but that he can 
state no facts not already shown to the jury.” Judges Freeman and 
Nelson dissented. 50,232. Wilson v. The State. 1871. 

Heard by Counsel—What This Means.— FREEMAN, J.: “A party is 
entitled, by our Bill of Rights, when accused, to be heard by counsel. 
This means more than a simple argument before a jury. It guarantees 
that in the preparation of his defense he is entitled to the advice and 
assistance of counsel that his defense may be properly shaped, so that 
his innocence may be made to appear, if the facts shall so warrant. It 
would be a cruel mockery to follow the letter, and give counsel for mere 
argument, when, for want of that counsel's assistance, there may be no 
case to argue, and the argument be a useless ceremonial.” 76,554. State 
v. Poe. 1881. 

Change of Venue in Absence of Prisoner.— Hopkins was indicted in 
Robertson county for murder, and subsequently while under bond for 
his appearance, he surrendered to the sheriff of Davidson county. 
While’in jail at Nashville he petitioned the judge of the Circuit court of 
Robertson county for a change of venue, presenting affidavits containing 
strong reasons why the venue should be changed, also that the court 
should act on the petition in the absence of the accused. The court 
changed the venue and the accused elected Davidson county. The 
Criminal court of Davidson county, on motion of the attorney general, 
decided it had no jurisdiction, and struck the cause from its 
docket. The defendants appealed. Turney, J.: “The question is, did 
the Circuit court of Robertson have jurisdiction, in the absence of 
Hopkins, to order a change of venue? . . . This ordinance was 
intended to soften the rigor of commou law which gave to persons 
accused of crime the right to appear for themselves, but deprived them 
of the right to be heard through and represented by counsel learned in 
the law. In the practice under our constitutional rule, it is very seldom 
the accused exercises the right of being heard by himself. He leaves 
to his counsel the entire management and control of his defense, still, 
if he were to demand it, the courts would be obliged to allow him to 
assist in the conduct and argument of his case. If the language 1 shall 
have the right' means that the right must be exercised, that it is a 
mandate and not merely the recognition of a privilege, few convictions 
up to the present period in the history of the State are maintainable. 
The right to be heard by himself is never voluntarily awarded, but is 
always, when desired, asked for by the prisoner, and when not asked for, 
is waived. It is too well established in Tennessee, that the accused has 


RIGHTS OF THE ACCUSED. 


69 


the right to be present at every step taken in his case in courts of original 
jurisdiction, to be discussed here, yet that right in all preliminary steps 
is personal to the accused and may be waived. That he has waived the 
right should clearly, conclusively and satisfactorily appear, before the 
prisoner is bound by it. . . . It can make no difference that the 
defendant was in the jail of another county; he was, nevertheless, sub¬ 
ject to the order of the court and within its jurisdiction. The judgment 
is reversed and the cause remanded to the Criminal court of Davidson 
county for trial.” 1 78, 205. Hopkins et al v. The State. 1882. 

Putting Defendant Under Rule When Co-Defendant Testifies, Erro¬ 
neous.— Lurton, J., held: “One of several defendants jointly upon 
trial for crime can not be put under rule while a co-defendant gives 
evidence on his own behalf. Such constrained absence of a defendant 
during his trial upon a criminal charge is in violation of his constitu¬ 
tional ‘right to be heard by himself and his counsel. 1 ” 2 91, 223. 
Richards v. The State. 1892. 

To Demand Nature and Cause of Accusation and Have Copy of Indictment. 

Legislature to Prescribe What Shall Constitute “Accusation”— 
Accused Entitled to a Copy of This.— The imperfection in the indictment 
relied upon was that it did not charge that the base coin was kept in 
possession with intent to pass the same. Caruthers, J. : “The statute 
for 1842, which is in substance contained in the Code, sec. 3 5135, certainly 
cures this indictment, and sustains the judgment of the court in over¬ 
ruling the motion in arrest, so far as it rests upon that ground. There 
is no argument against a plain statute. It puts an end to reasoning, 
and stops investigation. Unless, indeed, it be in conflict with the Con¬ 
stitution, and then, of course, it is a nullity. It is argued that such is 
the case here. ... It must be left to the legislature to prescribe 
what shall constitute the ‘accusation’—iu what form the crime shall be 
charged. A copy of this he has a constitutional right to demand. The 
Constitution has not prescribed the form in which the accusation shall 
be made. This is left for the legislature, and it has performed that duty, 
in this regard.” 40, 28. Sizemore v. The State. 1859. 

Entitled to Copy of Indictment Two Days Before Trial.— Iu this case, 
Smith, J., held: “Under the Constitution and laws of this State, a 
defendant indicted for a capital offense, if he is iu actual confinement, 
is entitled to a copy of the indictment 4 prepared against him, at least 
two entire days before the trial, unless he expressly waives the right.” 
46, 297. Nokes v. The State. 1869. 


1 T. & S., 5195; M. & V., 6025. 

* See Acts of 1887, ch. 79. 


3 T. & S., 5135; M. & V., 5964. 
4 T. & S.. 5204; M. & V., 6034. 



70 


TENNESSEE CONSTITUTIONAL LAW. 


Indictment Need Not Allege Where Offense Was Committed, But 
Proof Must Show This.— Deaderick, J.: “The objection to the indict¬ 
ment, which is for profanity, is that it does not allege that the profane 
words were spoken in Knox county. While the better practice is, in all 
cases, to state the venue in the body of the indictment, by section 1 5125 
of the Code it is provided that ‘it is not necessary for the indictment 
to allege where the offense was committed, but the proof shall show a 
state of facts bringing the offense within the jurisdiction of the county 
in which the indictment was preferred/ This section of the Code is not 
in conflict with the 9th section of article 1 of the Constitution, which 
declares that the accused has a right to demand the nature and cause of 
the accusation against him, and to have a copy thereof. These are fully 
set out in the indictment, and the law requires that the proof should 
show that the offense was committed in the county in which the indict¬ 
ment was preferred.” 50, 65. State v. Quartemus. 1870. 

Indictment or Presentment Must State Facts. — FREEMAN, J., held: 
“A presentment charging that the defendant did wilfully, etc., assume 
to be a justice of the peace, and did take upon himself to act as such, 
not being a ‘legal, qualified 7 justice of the peace, without showing 
wherein his want of legal qualification consists, is bad/ 7 ... He 
said: “The object of this provision is unmistakable and clear that a 
party accused should know from the statements and allegations of the 
indictment or presentment against him not only the charge against or 
accusation, but its nature and cause. It is intended to give him notice 
of the facts sought to be proved against him in order to his conviction, 
and for this purpose he is entitled to have a copy of the accusation. 77 
50, 257. Daniel v. The State . 1871. 

Record Must Show Failure to Furnish Copy. — MCFARLAND, J., held: 
“To entitle the prisoner to the benefit of a failure to furnish him with 
a copy of the indictment, the record must show that the copy was 
not furnished, otherwise the Supreme court will presume that it was 
furnished or waived/ 7 Davis v. The State. 1873. 

Indictment May Be Read From Minute Book.— FREEMAN, J., held: 
“The defendant in felony cases may lawfully be put upon his trial upon 
copy of indictment copied from the minutes when the original has been 
‘lost, destroyed, misplaced, or 2 purloined. 777 66, 155. Surrey v. The 
State. 1874. 

This Right Not Restricted to Capital Cases. — SNEED, J.: “ Before his 
trial was commenced the prisoner demanded a copy of the indictment 
against him, which was refused. This was error. ... To give effect 
to this provision of the organic law, the statute provides that ‘ every 


>M. & V., 5954. 


2 T. & S., 5138; M. & V., 5967. 



RIGHTS OF THE ACCUSED. 


71 


person indicted for a capital offense, if he is in actual confinement, is 
entitled to a copy of the indictment at least two entire days before trial. , 
Code of Tenn., sec. 5204 \ In the opinion of the court there is no 
authority for the restriction of this constitutional right to capital cases. 
It applies alike to all criminal prosecutions. The prisoner has the right 
to waive the right, and if he does not demand it, such waiver will be 
implied. But when demanded, it is error to refuse it.” 68, 230. Moses 
v. The State. 1877. 

Essential Requisites of a Criminal Charge — Copy of Indictment — 
Object of this Clause.— Freeman, J.: “The Constitution has fairly 
indicated what are the essential requisites of a criminal charge when it 
provides, ‘the accused shall have the right to demand the nature and 
cause of the accusation against him, and to have a copy thereof.’ The 
clear implication is that such paper shall furnish him a statement of the 
nature and cause of the accusation.” Cooke, J., dissented. 82, 466. 
Woods v. The State. 1884. 

To Meet the Witnesses Face to Face. 

Practice in England and Under Constitution of North Carolina — 
Depositions Taken at Examination Before Justice of the Peace Admis¬ 
sible.— Whyte, J.: “The English practice under the second and third 
Ph. and M., ch. 10, always has been to read the depositions of witnesses 
taken upon oath, in the presence of the prisoner and the magistrate 
before whom he has been brought on a charge of felony, and to give 
them in evidence on the trial of an indictment for the same felony, if it 
be proved on oath to the satisfaction of the court, that the witness is 
dead. Phillips, 277, and the cases there cited. Our Act of 1715, ch. 16, 
is substantially the same with the second and third Ph. and M., ch. 10, 
on this point, and always has been practiced under in the State of 
North Carolina, since the Revolution, as well as before. It has been 
retained by Judge Iredell in his revisal of the laws of that State, which 
shows his opinion to be, that its provisions were not repugnant to the 
North Carolina Constitution; and we have an adjudged case in the 
Supreme court of that State, in the year 1794, where, in a case of horse¬ 
stealing, a deposition was offered in evidence, that was taken in the 
absence of the prisoner. It was rejected on the ground, that it was not 
taken in his presence, when he could have had the liberty to cross- 
examine. This case necessarily admits the principle, that depositions, 
under proper circumstances, may be read on trial against a prisouer; 
and the act of 1715, ch. 10, is adverted to as the law of the land. State 
v. Webb, 1 Haywood, 104. Our Constitution is substantially the same, 
on the point on which this objection is founded, with the Constitution 


1 M. <fc V., 6034. 


72 


TENNESSEE CONSTITUTIONAL LAW. 


of North Carolina. The expression in our Constitution, sec. 9, is ‘the 
accused has a right to meet the witnesses face to face/ In the Consti¬ 
tution of North Carolina, it is, sec. 7, ‘every man hath a right to con¬ 
front the accusers and witnesses with other testimony/ The expressions 
in both mean the same thing, and any implications that might be raised 
on the diction in the one case, with the same and equal propriety might 
be raised in the other. It therefore seems to me, that as the Act of 
1715, ch. 10, has been considered the law of North Carolina since the 
Revolution, and depositions pursuant thereto have been read in evi¬ 
dence upon trial, upon a proper ground laid and proved, without being 
considered an infringement of their Constitution ; and as our Constitu¬ 
tion and practice are the same, we can see no reason for a change of 
that practice; but, on the other hand, a change as contended for would 
carry with it an inducement for the commission of additional crimes; 
for were it a rule, that the evidence taken under the Act of 1715, ch. 10, 
upon a commitment, could not be read in evidence on the trial of the 
indictment for the same offense, the death of the witness upon trial 
would be tantamount to an acquittal; and the inducement to procure 
the former, to wit, the death of the witness, would be precisely as great 
as that to effectuate the latter or the acquittal.” 10, 59. 1 Johnston v. 
The State. 1821. 

Admissions by Attorney General that Witnesses, if Present, Would 
Testify to Facts Contained in Affidavit, Does Not Deprive Defendant of 
His Right to Continuance. 2 — Reese, J.: “The Circuit court thought, as 
we do, that the affidavit was sufficient and refused to continue the cause, 
because the attorney general offered to admit, not that the facts stated 
in the affidavit were true, but that the witnesses there mentioned would, 
if present, testify as stated by the defendant. In the case 3 referred to 
in 10 Yerger, we say that the practical operation of such an arrange¬ 
ment upon the rights and the fate of the defendant must often, if not 
always, be perfectly illusory. We now go further than the intimation 
contained in that case, and say that when the admission of the counsel 
for the State is not merely that the witnesses would testify as stated, 
but that the facts are true as set forth in the affidavit, such admission 
should not preclude the defendant in a criminal case from his constitu¬ 
tional right of having the witnesses personally present at the trial. It 
were needless to urge upon practical and enlightened minds the differ¬ 
ence, in point of legitimate effect, between the personal presence of 
candid and respectable witnesses who testify to facts in their detail, 
ramification, and bearing, and the general admission of these by an 
attorney general, little impressing, perhaps, the minds of the jury, and 
constituting, as to its extent and bearing, a fruitful source of difficulty 


Overruling State v. Atkins, 1, 229. 

2 See State v. Baker, p. 76. 


3 Gray v. The State. But not reported. 



RIGHTS OF THE ACCUSED. 


73 


aud dispute. It were needless to urge how such a practice would tempt 
the unfortunate defendant, if he must forego the advantage of the per¬ 
sonal attendance of his witnesses, to seek an undue equivalent by 
amplifying, at the hazard of perjury, the statement in his affidavit, so as 
to obtain the broadest possible admission from the State. In every 
view, therefore, as it regards the rights of the defendant, and the safe, 
equal, and pure administration of justice, the practice referred to is 
improper and erroneous.” 19, 197. Goodman v. The State. 1838. 

This Provision Intended to Ascertain and Perpetuate a Principle in 
Favor of the Liberty and Safety of the Citizen — Dying Declarations 
Admissible — Compulsory Process. — REESE, J.: “For the plaintiff, it is 
insisted, that the Circuit court erred in permitting the declarations of 
Mary Anthony, the deceased, made in articulo mortis , to go to the jury 
as testimony, ... as being contrary to the Bill of Rights, which 
secures compulsory process for witnesses in behalf of defendants in 
criminal cases; and provides that they shall be confronted with the 
witnesses against them. . . . We are all of opinion that the Bill of 

Rights can not be construed to preveut declarations properly made in 
articulo mortis , from being given in evidence against defendants in cases 
of homicide. The provision in the Bill of Rights was intended only to 
ascertain and perpetuate a principle iu favor of the liberty aud safety of 
the citizen, which, although fully acknowledged aud acted upon before 
and at the time of our Revolution, had been yielded to the liberal or 
popular party in Great Britain after a long contest, and after very stren¬ 
uous opposition from the crown, from crown lawyers, and, if I may so 
speak, crown statesmen. In this case, as in that of libels and some 
others, the object of the Bill of Rights was not to introduce a new prin¬ 
ciple, but to keep ground already gained, and to preserve and perpetuate 
the fruits of a political and judicial victory, achieved with difficulty, after 
a violent and protracted contest. That our view of this question is cor¬ 
rect is made manifest by the fact, that, after more than forty years from 
the adoption of our first Constitution this argument against the admis¬ 
sibility of dying declarations on the ground of the Bill of Rights is for 
the first time made, so far as we are aware, in our courts of justice, and 
if made elsewhere, it does not appear to have received judicial sanction 
in any State.” 19, 278. Anthony v. The State. 1838. 

Deposition of Deceased Taken Before Committing Magistrate With 
Knowledge of Defendant, Admissible. — REESE, J., held: “In the trial 
of a prisoner for murder, the deposition of the wounded man, taken 
by the committing magistrate as part of the proceedings of commitment, 
is admissible if the prisoner knew the deposition was being taken, and 
had the opportunity to cross-examine, although he declined to be present, 
or to cross-examine; and where many witnesses were examined by the 


74 


TENNESSEE CONSTITUTIONAL LAW. 


prisoner as to the declarations of the wounded man, with a view to weaken 
the force of his deposition, the State may, as rebutting testimony, intro¬ 
duce witnesses to give the statements of the deceased on the same sub¬ 
ject, and the evidence was admissible in chief to fortify the deposition 
by showing that the deceased had been consistent and uniform in his 
statements.” 1 22,344. Bostick v. The State. 1842. 

Evidence of a Deceased Witness in a Criminal Case — English Rule — 
Rule in civil Cases. — Totten, J., held: “Upon the trial of a prisoner 
for larceny, it is competent to prove, on behalf of the State, by any 
person who heard it, the testimony of a witness who was examined 
before the committing court in the presence of the prisoner, and it is 
not necessary to prove the exact words of the witness, but only the sub¬ 
stance of the entire examination.” In delivering the opinion he said: 
“The right of the accused ‘to meet the witness face to face 7 is next in 
importance and value to the right of trial by jury, and it should be fully 
conceded and secured to him, according to the true intent and meaning, 
of the Constitution. It is urged that the admission of proof of what the 
deceased witness stated at a former trial is a violation of the right, 
and the case of the State v. Atkins, 1 Tenn., 229, and Peake’s Ev., 90 r 
are relied upon. The case in Tenn. R. supports the position. The court,, 
in delivering their opinion, say that, though no cases in point have been 
produced, they understand that such evidence could not be received 
agreeably by Magna Charta; and they also place the objection on the 
ground of the constitutional provision before referred to. The reference 
to Peake’s Ev. states briefly that such evidence ‘is not allowed in a 
criminal prosecution,’ and Fenwick’s case is cited, 4 St. Tri., 265. In 2: 
Phil. Ev. C. & H., note 561, it is said the reference does not warrant the- 
principle stated; that the case was that Lady Fenwick had spirited 
away a material witness who had sworn against Cooke on his trial for 
the same treason for which Sir John Fenwick was impeached, and refer¬ 
ence is made to 5 Harg. St. Tr., 62. But see 2 Hawk. P. C., ch. 46, sec. 
17. The right of the accused to confront the witness against him is 
doubtless declared in all the American constitutions, State and Federal; 
yet, in the case of U. S. v. Wood, 3 Washington C. C., 440, for robbing 
the mail, a capital offense, no objection of the kind was made, but proof 
of what a deceased witness had sworn on a former trial was held admis¬ 
sible, subject to certain restrictions, or to its being in the very words of 
the deceased. See Phil. Ev. C. & H., note 437. In the case of Common¬ 
wealth v. Richards, 18 Pick., 437, the constitutional question was 
expressly raised, and it was held that proof of what a deceased person 
stated at a former trial, in a criminal prosecution, was legal and com¬ 
petent. In this case, the case of The State v. Atkins, 1 Tenn., was 


1 This opinion also overruled that in State v. Atkins, 1, 229. 



RIGHTS OF THE ACCUSED. 


75 


relied upon by the defendant’s counsel. In Russell on Crimes it is stated 
that * if there has been a previous criminal prosecution between the same 
parties, and the point in issue was the same, the testimony of a deceased 
witness, given upon oath at the former trial, is admissible on the sub¬ 
sequent trial, and may be proved by one who heard him give evidence.’ 
2 Russ, on Cr., 683; Rex v. Carpenter, 2 Johns, 47; 2 Hawk. PI. Cr., ch. 
46, sec. 20. The reference in Hawkins is to the Earl of Stafford’s case, 
in which it was adjudged ‘that where witnesses could not be procured 
to testify viva voce , by reason of sickness, etc., then their depositions 
might be read, for or against the prisoner, on a trial of high treason, but 
not where they might have been produced in person.’ See 3 St. Tr., 204, 
and Ld. Raym., 407. It will be seen that this is a much stronger case 
than the one now before us, and we do not cite it as admitting its 
authority to the extent stated. But in what manner does the admission 
of such proof violate the right of the accused to meet the witness against 
him face to face? The evidence of the deceased witness was given on 
oath before the committing court, in the presence of the accused, who 
had the right to cross-examine. He is again present when that evidence 
is proved by the oath of other witnesses, and has the right to cross- 
examine. The objection to the admission of such evidence might be 
urged with stronger reason, as would seem, to the admission of dying 
declarations on trials for homicide, where the declarations admitted for 
proof are not made in the presence of the accused, are not on oath, and 
there is no right to cross examine. It is perfectly well settled, however, 
that such evidence is admissible on a charge of felonious homicide, and 
yet is not admissible in any mere civil suit. See 2 Russ, on Cr., 684, 
note 2, and cases reported in this State. 

“But reverse the case, and suppose the death of a material and only 
witness for the accused, and such an accident may not unfrequently 
occur, how important it is to the life, liberty, and reputation of the citi¬ 
zen that he have the benefit of such evidence when wrongfully accused. 
The admission of such evidence is more important to the accused than 
to the prosecution. The State could dispense with the punishment of 
an occasional offender without any material public injury, but the suc¬ 
cess of the defense is all important to the individual accused. And 
when it is considered that the effect of all evidence is to reflect light 
and truth on the matter in issue, to enable the forum before which it is 
tried to arrive at a just and true result, it would seem the more reason¬ 
able and proper course to favor its admission, where it is valuable in 
itself and not under the ban of well guarded legal objection. We are, 
therefore, of opinion that evidence of the character in question is legally 
competent, and should be permitted to go to the jury, in criminal as 
well as civil cases.” 29, 485. Kendrick v. The State. 1850. 


76 


TENNESSEE CONSTITUTIONAL LAW. 


Official Records, Bonds, Papers, Etc. — Certified Copies Admissible 
as Evidence —Not So in Cases of Forgery or Perjury — T. & S. 3791.— 
John C. Gaut, Sp. J., held: “This section of the Code is not in con¬ 
flict with the Bill of Rights, which provides that the witness shall 
meet the prisoner face to face. In such a case the paper is the wit¬ 
ness; and a copy of the paper is substituted instead of the original 
paper. The rule would be different under an indictment for forgery or for 
perjury, in some judicial proceedings. The original paper upon which 
the perjury or forgery was assigned, would have to be produced, and a 
copy could not be read. But in this case, the account tiled in the office 
of the comptroller, only forms a link in the chain of testimony to show 
the amount of money received by the prisoner from the State, and was 
material to establish the felonious breach of trust charged against him 
in the indictment. In such a case, a certified copy may be read in evi¬ 
dence against him.” 47, 90. Reeves v. The State. 1869. 

This Provision Refers to Witnesses for the State.—TURNEY, J., Said 
that this provision “has reference to witnesses in support of the pros¬ 
ecution, and not to witnesses on behalf of the defense. This has long 
been settled in this State by the statutory 1 enactment allowing per¬ 
sons charged with crime to take the depositions of witnesses. That 
statute has been repeatedly acted upon, and held by this court to be 
constitutional.” 72,328. Petty v. The State. 1880. 

Witness — Statements in Affidavit — When Evidence. — FREEMAN, J., 
held: “When the witness is within the jurisdiction of the court, but 
unable to be present at the trial, and there has been no failure of dili¬ 
gence on the part of the defendant, he cannot be compelled to take 
what he assumes he can prove by the witness as set out in his affi¬ 
davit for a continuance, as the testimony of the witness, upon the agree¬ 
ment of the district attorney that the statements of the affidavits should 
be read as the testimony of the absent witness,” and said: “It would 
ill accord with the spirit of that right, where the witnesses are within 
the reach of the process of the court, if the defendant is compelled to 
take a mere written statement as the equivalent of the personal pres¬ 
ence contemplated by the use of the process guaranteed to him by the 
Constitution.” This case was distinguished from Petty v. The State in 
that the witness in the present case was within the jurisdiction of the 
court, while in Petty v. The State, the witness was a non-resident of the 
State. 81, 326. State v. Baker. 1884. 

To a Speedy Public Trial By an Impartial Jury. 

Undue Excitement—Venue — Duty of Court to Change. — HARRIS, J.: 
“This case strongly admonishes us of the necessity of a watchful vigi- 


1 M. & V., 6223. 



RIGHTS OF THE ACCUSED. 


77 


lance and an unyielding firmness on the part of judicial officers to see 
that the invaluable right of a fair trial by an ‘ impartial jury’ should not 
be disregarded. And where such jury can not be procured, on account 
of undue excitement, in the county where the prosecution is pending, 
the court should change the venue to some other county free from such 
objection. This provision securing to the accused the right of trial by 
an ‘impartial jury,’ is not unmeaning—was not placed in our Bill of 
Rights without motive, and can not be disregarded by the courts.” 36, 
613. 1 Major v. The State. 1857. 

Act Disqualifying Jurors Because of Political Opinions Uncon¬ 
stitutional— “Franchise Laws” of the Reconstruction Period. — TURNEY, 
J.: “It is objected by plaintiff in error, that the circuit judge erred in 
overruling his objection to challenges made by the attorney general to 
the competency of fifteen jurors, otherwise competent, than that they 
‘ had not certificates to vote under the Franchise Acts of the legislature 
of this State.’ This exception to the ruling of the court was well taken. 
The action of the court was founded upon sec. 1, ch. 5, of the Act of 
26th of November, 1866, that in all trials of civil or criminal cases in 
any of the courts of this State, it shall be good ground of challenge for 
cause as to competency of any juror, that such juror is not a qualified 
voter of this State. This legislation was had with reference to that of 
June, 1865, and May 3, 1866, and is a precedent qualification of that of 
25th February, 1867, inappropriately denominated the ‘Franchise Laws.’ 
The Act of November, 1866, entitled ‘An Act to define the qualifications 
of jurors,’ is unconstitutional and void. ‘That the right of trial by 
jury shall remain inviolate,’ is a positive and inalienable, as well as con¬ 
stitutional, guaranty to every citizen of the State. The Constitution 
secures to the accused ... a speedy public trial, etc. . . . 

Under this statute do these fundamental principles obtain? No dispas¬ 
sionate and just mind can for a moment think so. Reading it in the 
light of the acts to which it has reference, and of which it is in fact a 
part, it is plain it was the offspring of wild political passions, intended 
to build up one political party and tear down another, and to destroy 
that equilibrium which paralyzes fanaticism and begets conservative 
justice. It can not be ‘an impartial jury’ selected and qualified alone 
because of its political opinions, produced in times of high excitement 
resulting from a bloody civil war, in which the State was distinctively 
divided against itself. ... By the statute under review, the consti¬ 
tutional provision, ‘that the right of trial by jury shall remain inviolate,’ 
is abrogated, and the guarauty of trial by an impartial jury, is expunged 
from the Declaration of Rights.” 50, 76. Gibbs v. The State. 1871. 


1 See same case, art. 1, sec. 10. 



78 


TENNESSEE CONSTITUTIONAL LAW. 


“Impartial Jury”—Definition of—History of This Provision — 
Impartial Juror—Who Is — Opinions — Newspaper Account Will Dis¬ 
qualify Juror—When.— The act UDder consideration was that of 1870-71, 
ch. 51 (Shankland, 159), which provided that no juror should be dis¬ 
qualified by any opinion which he may have, based upon any published 
account of the facts of the offense with which the prisoner is charged. 
Nicholson, J. : “The clause in our Constitution which guarantees 
to those accused of crime ‘a public trial by an impartial jury* is one 
among the many provisions in that instrument which have descended to 
us from the great charter of English liberty, which are declaratory of 
the rights of the people, and which have acquired a well-understood 
meaning, and must therefore be presumed to have been adopted in view 
of that meaning. If, therefore, the term ‘ impartial jury 7 has been 
defined in the history of constitutional law, it is to be assumed that the 
sense fixed upon the words in legal and constitutional history, where 
they have been employed for the protection of popular rights, is the 
sense in which they have been adopted in our Constitution. Cooley's 
Const. Lim., 60. According to the definition of our standard lexicog¬ 
rapher, a man who is ‘impartial' is one ‘who is not biased in favor of one 
party more than another;' who is ‘indifferent; unprejudiced; disinter¬ 
ested; as an impartial judge or arbitrator.' The primary idea .con¬ 
tained in this definition, is freedom from personal bias, indifference 
between the parties as persons; ‘not prejudiced' against one or the 
other; ‘disinterested' as between them. 

“But it is clear that the word was not used exclusively in its pri¬ 
mary sense, but in its secondary or more general sense — as freedom 
from any bias, or indifference, or disinterestedness—for we find that 
Sir Edward Coke, in enumerating the principal causes of challenge 
propter de fectum, specifies the following: ‘That a juryman is of kin to 
either party within the ninth degree; that he has an interest in the 
cause; that there is an action depending between him and the party; 
that he has taken money for his verdict; that he has been arbitrator, or 
declared his opinion on either side,' etc. 1 Tidd., 853; Co. on Lit., 156; 
3 Bur., 1856; 5 Bac., 353. It appears from these authorities that the fact 
that a juryman ‘had declared his opinion,' on either side, was a principal 
cause of challenge on the ground that he was not ‘ impartial.' But it was 
competent for the legislature to change or modify this rule of the common 
law, unless it has become so engrafted upon the Constitution of the State 
as to be irreparable or unalterable by the legislature. The guaranty of 
a trial by an ‘impartial jury' has been secured to the accused in exactly 
the same language in the Constitutions of 1796,1834 and 1870. It would 
be a remarkable fact if the legal import of the words ‘impartial jury,' 
as used in all three of our Constitutions, should now be a matter of 
sufficient uncertainty to render it necessary to resort to a philological 


RIGHTS OF THE ACCUSED. 


79 


investigation to ascertain their true meaning. They were introduced 
into the Bill of Rights in 1796, and we are to presume that they were 
adopted with a full understanding of their legal import, as ascertained 
and settled by judicial interpretations in Eugland. But if there was 
any doubt as to this proposition, if we shall find that there has been an 
unbroken chain of judicial construction from 1796 down to 1834, when 
the same words were again adopted in the Constitution of that year; 
and that from 1834 down to 1870, when the same words were adopted 
for the third time in the Constitution of that year; and if we find, 
throughout this succession of decisions, the same construction has been 
uniformly placed upon the words, we are forced to the conclusion that 
that construction is to be regarded as the true legal, judicial and consti¬ 
tutional meaning of an ‘impartial jury/” 

He then reviewed the previous decisions interpreting these words, 
and said: “ Without reviewing the cases further, we have cited enough 
to establish beyond controversy the proposition that, during the exist¬ 
ence of the Constitution of 1796 and 1834, the legal meaning of an 
‘impartial jury/ was one which had neither formed nor expressed an 
opinion as to the guilt or innocence of the accused, whether from con¬ 
versing with the witnesses, or hearing them converse, or hearing a 
narrative and detail of the facts. If we had any doubt as to the cor¬ 
rectness of the interpretation of these words, repeated through a period 
of three-quarters of a century, it would approach to rashness and pre¬ 
sumption in us to disregard such authority. But we have no such 
doubt, and therefore recognize it as the settled meaning of the consti¬ 
tutional guaranty that the accused has the constitutional right to be 
tried by jurors who are ‘impartial/ and that none are impartial who 
have formed or expressed their opinions, either from hearing the 
evidence or from hearing others detail it who did hear it, or from con¬ 
versing with those who professed to know the facts and to give a detail 
of them, or from hearing such persons in conversation with others 
giving such details. When the Constitutions of 1870 was adopted, the 
same language, which had thus been judicially interpreted, was again 
readopted, and, we have a right to presume, with full knowledge of its 
uniform interpretation in the Constitution of 1796 and 1834. This being 
so, this interpretation of the language becomes incorporated with the 
Constitution of 1870 as part of the fundamental law of the State. The 
decisions which have fixed the true meaning of the words ‘impartial 
jury/ also establish the position that a juror who is incompetent from 
having formed or expressed an opinion as to the guilt or innocence of 
the accused, can not render himself ‘impartial’ by expressing his belief, 
on his examination, that he can render a fair and impartial verdict 
according to the law and the proof, notwithstanding the opinion then in 
his mind. . . . 


80 


TENNESSEE CONSTITUTIONAL LAW. 


“When the Constitution guarantees to the accused an impartial 
jury, it necessarily means that he is entitled to a jury which can enter 
upon the examination of his case, conceding to him the full benefit of 
that presumption of innocence which the law gives to every prisoner 
as a matter of right. This presumption entitles him to an acquittal 
until it has been overturned by plenary proof. In the formation of the 
jury under the statute in question, the prisoner may have forced on him 
as his triers twelve men, who will enter the box with the conviction on 
their minds that he is guilty, and he must stand convicted in their judg¬ 
ments until he has by full proof, overcome their convictions of his guilt 
and established his innocence. This would be a virtual reversal of the 
fundamental principle, that the law presumes the accused to be inno¬ 
cent until the proof shows him to be guilty. It is little else than a 
mockery to try the competency of a juror by asking if he has formed 
and expressed his opinion of the guilt or innocence of the accused, and 
when he answers that he has upon having heard or read the facts, then 
to take him as an impartial juror, upon his belief that he can divest 
himself of his convictions and render a fair and impartial verdict. A 
prisoner whose life or liberty is submitted to a jury composed of such 
men, can not be said to have a fair trial by an impartial jury. 

“We hold that an impartial juror is one who enters the box indiffer¬ 
ent between the parties, indifferent in feeling and in opinion. Either 
partiality or prejudice, in the usual acceptance of these words, or an 
opinion based on the supposed facts of the case, already existing in his 
mind, renders it impossible for him to be indifferent, and therefore to be 
impartial. If he is partial or prejudiced, he will enter upon the trial 
predisposed to follow his partiality or prejudice in weighing the testi¬ 
mony. If he enters the box with an opinion already made up, he will . 
be in danger of so viewing and weighing the testimony as to sustain and 
confirm his existing impressions. One of the jurors who was put to 
the prisoner in this case as competent, stated that the impressions made 
on his mind by reading the detail of facts as they were given in the 
newspaper, were such that the proof to remove them must be full. 
When could a jury composed of men such as the juror referred to be 
said to be indifferent? Certainly never, until their convictions of guilt 
had been removed by full proof of innocence. Is it not an abuse of 
language to call such a jury an impartial one? To be an impartial jury, 
they should enter the box indifferent at the time of entering it, between 
the State and the accused. The courts have gone to the verge of the 
law in holding that a juror who has formed and expressed an opinion on 
mere rumor, may be an impartial juror. We recognize such to be the 
settled law, but we are not disposed to go further in that direction." 
65, 468. Eason v. The State. 1873. 


RIGHTS OF THE ACCUSED. 


81 


Special Court — Jury — Selection From Part of County.— The ques¬ 
tion here was the validity of the Act of 1891, ch. 26, sec. 5, establishing 
a special law court at Rockwood, and requiring that all jurors selected 
for that court be from that portion of the county embraced within the 
jurisdiction of the court. T. S. Webb, Sp. J.: “It is insisted that the 
fifth section of said act is unconstitutional, because that section requires 
the jurors for the Rockwood court to be taken from the resident citi¬ 
zens of the sixth, seventh, eleventh, twelfth, and thirteenth civil dis¬ 
tricts of the county, instead of from the citizens of the whole county, 
or, as counsel says, from ‘the body of the county/ ... If the jury 
is made up of citizens of any part of the county, who are otherwise 
qualified, the requirement of the Constitution is complied with. The 
common impression that the jury must come from the entire county is 
derived from the Code, sec. 3985, which requires that one of the jurors 
designated for the Circuit court ‘ shall reside in each civil district into 
which the county is divided, and where the number of districts and the 
number of jurors do not coincide, the selection should be made with as 
much equality as possible/ But ^ec. 3987 provides that ‘no mistake 
or omission, however, in complying with the above provisions in regard 
to the residence of the jurors designated shall amount to a disqualifica¬ 
tion/ The Code provision thus appears, by its own terms, to be 
directory merely; and, if this were not so, still the Code is no more than 
an act of the legislature, and is subject to be amended or repealed by 
subsequent acts.” 92, 97. 2 Ellis v. The State. 1892. 

Of the County in Which the Crime Shall Have Been Committed. 

This Right Can Not Be Infringed By the Legislature, Even.—C aRUTH- 
ers, J.: “By the Constitution, the accused has a right to be indicted in 
the county where the oft'ense was committed; and we held at this term, 
that this right can not be infringed, even by the legislature. However 
this question may have been decided before the Code, or by the common 
law, it is now, under the 3 Code, only a matter of construction. We 
think it clear, that by this section, ‘to continue to cohabit with such 
second husband or wife, in this State/ is a distinct and complete offense, 
and as much cognizable in the county where it occurs as the crime of 
bigamy is in the county where the second marriage took place. The 
offender could not be charged for the latter crime in any other county 
than that where it occurred; but, as to the former, it may be in a 
different county, and must be located by the facts, as well as the other.” 
40, 546. Finney v. The State. 1859. 


1 M. & V., 4762. 3 M. & V., 5652. 

8 See same case, art. 6, sec. 1; art. 10, sec. 4. 


6 



82 


TENNESSEE CONSTITUTIONAL LAW. 


The Fact That the Offense Has Been Committed in a County is What 
Gives That County Jurisdiction—Venue Must be Proved and Shown in 
Bill of Exceptions—Judicial Construction.— TURNEY, J., decided that 
the Code of 1858, 5242, sub-sec. 9, which prohibited the reversal of a 
judgment “ because the bill of exceptions omits to state that the venue 
was proven in the court below” was unconstitutional. The attorney 
general presented a petition for rehearing. Turney, J.: “The opinion 
delivered on a former day does not hold ‘that the legislature is power¬ 
less to cure defects in criminal procedure in any case/ but does hold 
that the legislature, in its efforts to cure defects, must confine itself to 
the powers given it by the Constitution; and if it shall transcend such 
power, its acts are void. The Constitution is the supreme law; the 
legislature is its creature; that the creature shall be greater than, or 
even equal to its creator, is a legal as well as a natural impossibility. 
It is the fact that the offense has been committed in a couuty that gives 
the court of that county jurisdiction to try the accused. The fact is an 
ingredient absolutely necessary to conviction, and must (not merely 
may) be made to appear. Take the provision of the Code, making it 
unnecessary to lay venue in the indictment, and the provision involved 
here, put them together, and bring to this court a case only made out 
by their application, and we have a proceeding as nearly void of form 
and substance as it is reasonably convenient to imagine. . . . ‘Judi¬ 

cial construction of Constitution has gone to the verge of liberality. 
To it mainly attaches the sad responsibility of our struggle, in its evening 
twilight, to preserve the fragments of organic security. Stare decisis. 7 ” 
50, 439. Mayes v. The State. 1872. 

In the case of Alexander v. The State, 50, 481 (1872), Nicholson, 
J., adhered to the above opinion in Mayes v. The State, without dis¬ 
cussion. 

Venue of Accessory Before the Fact. — SNEED, J., held: “The locus in 
quo of the offense of an accessory before the fact to the crime of mur¬ 
der, is in the county in which the murder is done. The crime is only 
complete when the murder is done, and the jurisdiction for the trial of 
the criminal is where the murder is done.” 1 67,96. Statev. Ayers. 1874. 

Change in Boundary of County.—Right of Trial in County Having 
Present Jurisdiction of Place Where Offense Was Committed—A Personal 
Right. —Pursuant to the Act of the General Assembly creating the county 
of Moore the commissioners fixed the western boundary of said county 
nearer than eleven miles from the county seat of Lincoln. Lincoln did 
not object. The homicide was committed within the boundaries of 
Moore county, after it was laid off, but at a point less than eleven miles 
from the county seat of Lincoln, from which that portion of Moore was 


1 T. & S., 4591, 5342. 



RIGHTS OF THE ACCUSED. 


83 


taken, and it was insisted that although the killing took place in Moore 
county, as organized, yet that the place is really in Lincolu county 
because of the unconstitutional running of the west boundary line of 
Moore. 

Nicholson, J., held that there was nothing on the face of the act 
showing its unconstitutionality, and said: “The question then presents 
itself, had the defendant a right to raise the question of the invalidity 
of the act on the ground that the western boundary line is void because 
established nearer than eleven miles of Fayetteville? He has the 
undoubted right to be tried by a jury of the county iu which his crime 
was committed. Was he deprived of this right by a trial in Moore 
county? Does his right of trial in the county where his crime was 
committed mean anything more than that he has a right to be tried in 
the county organized and established, as a political corporation of the 
State, iu which his offense was committed? His right is that of trial in 
the county which has jurisdiction of the place at which he committed 
the offense. It is a personal right, which is controlled by the law fixing 
the boundary of the county in which his offense was committed. It is 
not such a vested right as authorized him to require the court to deter¬ 
mine whether the boundaries of the county are constitutionally estab¬ 
lished or not. The defendant had no such vested right of trial in the 
territory of Lincoln county as would be violated by the Act of the Legis¬ 
lature in cutting off a fraction thereof, in making the new county of 
Moore. His right of trial in the county of Moore was as perfect as it 
had been in Lincolu county as soon as Moore was organized and estab¬ 
lished as a political corporation. Down to that time defendant could 
not be deprived of his right, but after the county of Moore was vested 
with jurisdiction over her territory the right to inquire into the legality 
of the western boundary belonged alone to the county of Lincolu. She 
had a vested right in all her territory, and could institute judicial pro¬ 
ceedings to reclaim any portion thereof illegally taken from her by run¬ 
ning the western boundary of Moore nearer thau eleven miles to her 
court house. But so long as Lincoln county acquiesces in the boundary 
which cuts off a portion of her territory, the jurisdictional right of 
Moore county over the territory so cut off can not be questioned in any 
collateral proceeding pending in the courts of either county.” 66, 52/ 
Speck v. The State. 1872. 

Acts Extending Jurisdiction Over Crimes. 

This Provision for the Benefit of the Accused — Crime Committed 
Within One-Quarter Mile of County Line—Act Providing Jurisdiction 
Unconstitutional.—C arutheks, J.: “The evil iutended to be remedied 
by sec. 4976, was, that where crimes were committed on, or near a 
county line, it might turu out iu the proof, after a fair and expensive 


84 


TENNESSEE CONSTITUTIONAL LAW. 


trial had fully established the guilt of a defendant, that the indictment 
was in the wrong county, and the prosecution would be defeated on the 
ground alone, that the prosecution was in the wrong county. A few 
yards or feet would save the greatest offenders from punishment, as the 
Constitution forbids that a man should be put a second time in jeopardy 
of life or limb, for the same offense. It was for this very commend¬ 
able reason, a margiu of one-fourth of a mile was given by the Code for 
the venue. It ought to be maintained, if it could be, under the Consti¬ 
tution. But can it be? Is it not in direct conflict? 

“The worst criminals have their rights. Some of them are enumer¬ 
ated in the section of the Constitution under construction. They must 
be secured as effectually as any other constitutional rights. One of 
these rights is, to be tried by an impartial jury 1 of the county or dis¬ 
trict,’ in which the offense has been committed. This legislative pro¬ 
vision is, that he shall not, in all cases, have that right. But that, he 
may be indicted, and tried by a jury of a different county, in the given 
case. If it be no infraction of this right where the place of the crime 
is within one-fourth of a mile from the line, it would not be, if it were 
one or ten miles. The case is very strongly put in the Constitution: 
The accused shall have the right to be tried, etc. The word ‘district, 7 
does not aid the argument. That had reference to the state of things 
under the old Constitution, at a time when there was only one court for 
several counties, constituting what was called a district. It does not 
apply to circuits. It was carried into the present Constitution, by copy¬ 
ing from the old, without noticing the change which had taken place in 
our judicial system, by which a Circuit court was held in every county. 
Since that was done, the word district in this connection, has no appli¬ 
cation, and nothing to operate upon. 

“But it is argued, that this construction would defeat and annul all 
the laws on the subject of a change of venue in criminal cases. We do 
not think so, and adhere to the decision in Dula v. The State, 8 Yerg., 
512, in which those acts are held to be allowed by the Constitution. The 
reasoning in that case, is entirely satisfactory. This is a very different 
question. Those acts are made for the benefit, and to enlarge the rights 
of the accused. The Constitution does not say that no other county 
shall try him, or have jurisdiction of the case, but only that he shall 
have a right to be tried where the offense is charged to have been com¬ 
mitted. The legislature says, in these acts, now a part of the Code, 
sec. '5195, that, if an impartial jury cannot be had there, and that is 
made to appear, by the affidavit of the defendant and others, or by the 
observation of the court in attempting to get a jury, the case may be 
sent to another county, not obnoxious to the same objections. Those 
acts provide that the accused shall not be deprived of the right to a 


1 See T. & S., 5195; M. & V., G025. 



RIGHTS OF THE ACCUSED. 


85 


1 speedy public trial by an impartial jury] because, or where, such atrial 
and jury can not be had in the county of the offense. This whole sec¬ 
tion in the Declaration of Rights, is for his benefit, and so are the acts 
allowing a change of venue in the cases prescribed. There can be no 
question of this, where the accused applies for, or consents to, the 
change. How it would be where it is done without or against his con¬ 
sent, either express or implied, it might be improper now to say, as that 
point is not involved, necessarily, in this discussion. But in those cases, 
it will be observed, the prosecution is instituted in the proper county, 
and subsequent events render it necessary to change the form of trial, 
to protect the constitutional rights of the accused to a speedy, impar¬ 
tial trial, or prevent a failure of justice. . . . This section of 
the Code is unconstitutional and void.” 41, 341. Armstrong v. The 
State. 1860. 

Offenses Committed Beyond the State—U. S. Constitution, Art. 3, 
Sec. 2, and Sixth Amendment.— NELSON, J., held: “The Code of 1858, Sec. 
4981, providing for the punishment of offenses committed within five 
miles of the State line, on board of vessels engaged in navigating waters 
of the State was unconstitutional.” After citing the cases of Armstrong 
v. The State, and Kirk v. The State, he said: “ There is no difference, in 
principle, between these cases and the section of the Code now uuder 
consideration. The convention which recently formed the new Consti¬ 
tution of this State, permitted the clause in the Declaration of Rights, to 
remain unaltered, with a full knowledge, as is to be presumed, of the 
decisions above mentioned, which, in our judgment, rests upon sound 
principle, and ought not to be disturbed. The Acts of Congress which 
provide for the punishment of crimes and misdemeanors committed 
upon the high seas and the lakes and navigable waters of the United 
States, not subject to the jurisdiction of the States, are founded, in 
part, upon that clause which gives Congress the power Ho define and 
punish piracies and felonies committed on the high seas, and offenses 
against the law of nations and are further authorized by art. 3, sec. 2, 
of the National Constitution, which, among other things, declares that 
‘the judicial power shall extend to all cases of admiralty and maritime 
jurisdiction/ and are not in conflict with the Sixth Amendment, which 
declares that ‘the accused shall enjoy the right of a speedy public trial, 
by an impartial jury of the State aud district wherein the crime shall 
have been committed.’ . . . These provisions of the National Con¬ 

stitution, and the opinions pronounced upon the statutes enacted under 
them, are not in conflict with the former decisions of this court, and 
there is no provision in our State Constitution as to admiralty and mari¬ 
time jurisdiction.” 50, 230. Craig v. The State. 1871. 


86 


TENNESSEE CONSTITUTIONAL LAW. 


Change of Venue from One County to Another. 

The Legislature Can Not Abridge, but May Enlarge the Right to a 
“Speedy Public Trial,” etc., by Authorizing Venue Changed to Another 
County.—G reen, J.: “It is insisted that the Circuit court of Warren 
county had no jurisdiction to try and determine this cause, for that the 
’Act of Assembly of 1817, ch. 30, authorizing a change of venue in crim¬ 
inal causes, is unconstitutional. . . . The rights which in this section 
are secured to the accused in criminal prosecutions can not be taken 
away from them by any act of the legislature. It does not follow, how¬ 
ever, that because the legislature can not abridge those rights it can not 
enlarge and add to them. The accused hath a right Ho a speedy public 
trial, by an impartial jury.’ If such a trial by such a jury can be had 
in the county where the crime was committed, the right to be tried 
there is a very important one to him. But if the prejudices of a county 
be excited against a party, so that he dare not ask a speedy trial, and 
so that he can not hope for an impartial jury, it would be a great mis¬ 
fortune if no other county could acquire jurisdiction of the cause. The 
greater and more important rights, ‘a speedy trial by an impartial 
jury,’ would be sacrificed for the sake of the one least important, and 
which was secured only that the others might be the more certainly 
enjoyed. This must have been foreseen by the framers of the Consti¬ 
tution, and we are not to suppose that they intended to fix the jurisdic¬ 
tion of a cause unalterably to the county where the offense was 
committed, and thereby, in some cases, defeat the principal object in 
the introduction of this provision, unless it be manifest from the lan¬ 
guage used that such was their intention. 

“Does the language under consideration limit the jurisdiction of an 
offense to the county where it was committed? It says the accused 
hath a right to be tried there. But does the existence of this right pre¬ 
vent him from choosing another county, upon the court of which the 
legislature may have conferred jurisdiction of his cause? Suppose the 
language of the Act of Assembly was like that of the Bill of Rights, and 
also provided that in criminal cases, when the accused can not obtain a 
speedy trial by an impartial jury in the county where the crime was 
committed, he shall have a right to be tried in the most convenient 
adjoining county, would this provision conflict with the one secured in 
the Bill of Rights? Surely it would not. It would but confer on the 
accused an additional right, in order to effectuate the great end for 
which the one before mentioned was by the Constitution secured. If 
the construction contended for were to prevail, instead of reading the 
article in question, 1 the accused hath the right,’ it would be made to 

1 H. & C , vol. 1, p. 368; Code 1858, 5195 et seq., 5201 et seq.; T. & S., 5195 et seq., 5200 et seq.: 
M. & V., 6025 et seq. 



RIGHTS OF THE ACCUSED. 


87 


read, ‘ the accused shall be compelled to submit to a trial in the county 
where the crime was committed/ Instead of being a benefit conferred, 
in order that a party should have a speedy and impartial trial, it would 
be a serious injury inflicted, in forcing a man to commit his life into the 
hands of a prejudiced jury. 

“In addition to this view of the subject, it may be added that this 
section of the Bill of Rights has never heretofore been thought to pre¬ 
vent the passage of laws providing for the change of venue in criminal 
cases. Such laws have existed ever since the year 1808, and many cases 
have occurred where the venue has been changed several times. In 
the cases of Burnett v. The State, and Bridges v. The State, in 1819, the 
convictions took place after several changes of veuue, and each of the 
culprits was executed under the sentence of this court. We think, 
therefore, that the Circuit court for the county of Warren had jurisdic¬ 
tion of the cause, and that there is no error in the judgment.” 16, 512. 
Dula v . The State. 1835. 

A Wise, Just and Necessary Safeguard to the Liberty of the Accused 
— Not Difficult to Construe—Act Allowing Change of Venue Against 
Consent of Defendant Unconstitutional.— McKlNNEY, J.: “The Code 
provides, (sec. 5195*,) that ‘when the court, in any criminal case, upon 
an attempt to select or impanel a jury for the trial of the defendant, is 
of opinion that a fair aud impartial trial can not be had in the county 
where the cause is then pending, the venue may be changed without the 
prisoner's consent/ This provision of the Code, it is insisted, is in 
violation of the . . . Constitution. This question is, for the first 

time, directly presented for our determination, and we have bestowed 
upon it a careful consideration; the result of which is, that this provision 
of the Code is inconsistent with the Constitution, in our judgment. 
The argument, founded upon the supposed absurd aud mischievous 
consequences to arise out of this determination is plausible; but the 
force of a direct, explicit, aud unequivocal constitutional principle is not 
to be avoided by arguments of this sort. 

“What is therein this simple provision to interpret or construct? 
Is it possible to raise a doubt as to the intention, or proper meaning, of 
the clause? Our language admits of no more explicit or precise 
expression of intention. If it were even possible to cavil as to the 
phrase, ‘speedy public trial,' or ‘impartial jury,' it is certainly impos¬ 
sible to do so as regards the concluding words, ‘jury of the county in 
which the crime shall have been committed.' 

“What is the simple import of the provision of the Code under con¬ 
sideration? It is, that, under circumstances, the court may deny the 
accused this constitutional right, and force him, against his will, to be 


T. & 8., 5195; M. & V., 6025. 



88 


TENNESSEE CONSTITUTIONAL LAW. 


tried by a jury of a different county. And upon what reason is it 
attempted to vindicate this enactment? This, merely, that otherwise 
the absurd and unreasonable consequence will, in some cases, follow, 
that the accused can never be tried at all. This is by no means either 
a necessary or logical consequence. But, if it were admitted to be so, 
the easy and conclusive answer is, thus the fundamental law is written. 

“The practical inconvenience and mischievous consequences, which 
may occasionally arise out of a strict adherence to the Constitution, of 
which the present case is an illustration, may be an all-sufficient reason 
to induce the legislature to modify the existing law, as regards the 
necessary qualifications of jurors in criminal cases of the higher grades, 
but it can be no reason for a plain violation of the Constitution. For 
this, no possible consequences, however apparently unreasonable or 
absurd, can be admitted to afford sufficient reason. 

“The provision of the Constitution is, in itself, a wise, just and nec¬ 
essary safeguard to the rights and liberty of the accused. Like all 
general rules and principles of law, it may, in exceptional cases, be 
attended with inconvenient consequences in its practical operations; 
but these must necessarily be submitted to, for the sake of the general 
salutary effect of the principle. In the existing organization of our 
judicial system, the clause of the Constitution in question is to be read, 
omitting the word ‘district/ which was used in the original Constitution 
of 1796, with reference to the district system then existing, but which 
was abolished in 1809. 

“The Act of 1827 was free from any constitutional objection, because 
it required the assent of the prisoner to a change of the venue. It will 
scarcely be denied that, under ordinary circumstances, a prisoner who 
is suijuris , may waive this as well as any other legal right, if done 
advisedly. And although the provision of the Code, as it stands upon 
the statute-book, is inoperative and void, because it assumes to confer 
upon the court the exercise of a power not allowed by the Constitution, 
yet, we suppose, the consent of the prisoner to the change of venue 
would obviate all objection.” 41, 346. Kirk v. The rtate. 1860. 

Sound Legal Discretion Vested by Statute in Judge. — SHACKLEFORD, 
J.: “The first question presented is: Did the court err in refusing to 
change the venue? By the Act of 1827, ch. 30, all laws authorizing a 
change of venue in criminal cases, were repealed. Before the passage 
of this act a change of venue was had upon the application of the pris¬ 
oner, if there was a prejudice against him. The Act of 1827 introduced 
a new policy. It took away from the prisoner all right to a change of 
venue, on his application, and vested the power in the circuit judge, 
when a fair and impartial trial could not be had, and that could only be 
determined after an attempt to impanel a jury. Sec. 1 5195 of the Code 


1 T. & S., 5195; M. & V., 6025. 



RIGHTS OF THE ACCUSED. 


89 


has relaxed the rule to some extent. ... By this provision of the 
Code, the rigid rule prescribed by the Act of 1827 was relaxed. A 
sound legal discretion was vested in the circuit judge. He must be 
satisfied, from the facts presented, the prisoner can not have a fair and 
impartial trial in the county.” 43, 357. Hudson v. The State. 1866. 

Prisoner Must Consent to Change.—HAWKINS, J., held in this case: 
“A prisoner’s right to be tried in the county where the offense is alleged 
to have been committed, is secured to him by the Constitution, and he 
can not in any case, be deprived of that right, without his consent being 
given in open court. The record, where a change of venue has been 
ordered, must show that the prisoner applied for a change of venue, the 
reasons assigned for the change, and that the defendant assented 
thereto.” 46, 539. The State v. Denton. 1869. 

And Shall Not be Compelled to Give Evidence Against Himself. 

Testimony Before Grand Jury—Compelling Witness to Give Evidence 
Against Himself—Common Law Rule — Construction of Statutes, Art. 
11 , Sec. 1 . —Turney, J.: “Whether the evidence demanded of the wit¬ 
ness against himself is to apply to a case already existing, or may be 
used in one that may thereafter arise, it is nevertheless under the ban 
of the constitutional interdiction. That it may simply point out in one 
case how a prosecution and a conviction may be had for another and 
different offense, does not avoid the organic provision, and the witness 
can not be compelled to testify. If the witness shall criminate himself 
he can only protect himself by showing that he was examined before 
the grand jury as to the particular offense charged against him in the 
indictment. Owens v. The State, 2 Head, 455-7. It follows that if his 
testimony develop other offenses than the one inquired of by the grand 
jury he will not be protected. So far the case of Hirsch v. The State, 
8 Baxt., 89, is not authority in the present. In that case there was no 
irregularity. I think the holding in that case is not sustainable upon 
reason or authority. Section ‘5089 of the Code, provides: ‘And no wit¬ 
ness shall be indicted for any offense in relation to which he has testified 
before the grand jury.’ 

“ If, as said in Hirsch’s case, ‘This enactment was intended expressly 
to obviate the constitutional inhibition against compelling a witness to 
criminate himself/ it was not intended to obviate the constitutional 
inhibition against compelling a witness to give evidence against himself. 
Nor do I think that it can be maintained that the makers of the Consti¬ 
tution intended the words, ‘give evidence/ to mean criminate in its 
strictly legal sense, they intended to and did use a term of more force 
and comprehension. Being assembled to make an organic law that 


M.& V., 5914. 



90 


TENNESSEE CONSTITUTIONAL LAW. 


body certainly had before them Constitutions of other governments as 
guides. Certainly the Constitution of the United States, with which 
that of the State must be consistent, was closely consulted, and the 
language there is, 1 shall not be compelled in any criminal case to be a 
witness against himself.’ This is with a view to punish him. That this 
distinction was in the minds of the convention, and that there was a 
purpose in the difference of phraseology is sustained by the dissenting 
opinion in Hirsch’s case, which was prepared by Chief Justice Nicholson, 
who was a member of that convention, and who, as a lawyer, jurist, and 
statesman, had no superior in the State, and perhaps not in the Union. 
In construing the Constitution, in the making of which he was a most 
efficient factor, he says: ‘We do not concur in the conclusion that the 
legislature intended, or that they could if they had so intended, to 
deprive the witness of his constitutional right to refuse to give evidence 
as to his own criminality. The act of testifying constitutes the abroga¬ 
tion of the offense under the law. This only occurs after the witness 
has voluntarily waived his constitutional right to refuse to testify. If 
he does not voluntarily waive his right he cannot be deprived of it by 
compulsory law.’ Mr. Nicholson certainly understood the language he 
approved, and properly defined it when he came to pass upon it as a 
judge. 

“The purpose of the act is to offer inducements to persons who have 
committed offenses against law in connection with others to divulge the 
secret. There is nothing compulsory in the language, nor could there 
be without a violation of the Constitution. It recognizes by its terms a 
want of authority in the legislature to command the witness to testify, 
and merely offers a reward to him if he has or will do so. The witness 
may elect to take advantage of the law, or take chances of a discovery 
and conviction of himself. By it the legislature proposes to buy the 
evidence of one guilty man against another or others, and to pay for it 
by exemption from indictment for the offense in relation to which he 
has testified. In this case the court has undertaken to compel the wit¬ 
ness to give evidence against himself. The Constitution says this shall 
not be done. The court claims the authority under section 5089. Both 
the legislature and the courts are creatures of the Constitution, and 
must conform their actions to its provisions. The legislature could not 
say the witness shall testify, but could and did say, if he will, etc., and 
the courts can do no more. The witness must determine for himself 
whether he will accept the legislative reward offered for his testimony. 
Whether the constitutional protection thrown around offenders is good 
or bad policy, is a question with which courts and legislatures have no 
concern. They must support and enforce the Constitution as they find 
it. Being its creatures they must obey its mandates, and not evade 
them by strained constructions for any emergency, however important 
to public weal it may seem. 


RIGHTS OF THE ACCUSED. 


91 


“The language of both the Constitution and the statute is plain, 
simple and unambiguous. The one is positive in prohibiting compul¬ 
sion, the other simple in its offer of inducement and reward to an 
offender to betray his fellows by voluntary election to testify for the 
sake of protection to himself. At common law the rule is, that if an 
associate in crime will reveal upon his fellows and testify against par¬ 
ties to the same crime, he may reasonably hope the State will in con¬ 
sideration pardon his offense. It was a part of the rule that the gov¬ 
ernment was not bound to apply to it. The object of the hope held out 
by that rule was to increase the means of discovery and punishing 
offenses. Our law makers recognizing the utility of the rule, but seeing 
that it did not accomplish to any great extent the ends aimed at, modi¬ 
fied it by converting a bare hope into an absolute assurance, making it 
a positive mandate instead of a discretion resting in the breasts of 
courts and attorneys general. So that our statute is nothing more than 
the common-law rule made certain of application. 

“Under the common-law rule the offered witness could not be com¬ 
pelled to testify; then why should a different practice obtain under the 
same rule declared by statute in more direct and trustworthy terms 
under a Constitution protecting a witness from giving evidence against 
himself, while the common-law rule is untrammeled by Constitution 
except as it comes of usage and precedent? . . . The constitutional 

declaration that the accused shall not be compelled to give evidence 
against himself applies in all stages of the prosecution, from the very 
first step to the last. That declaration has no qualification or condition. 
It is positive and absolutely prohibitory. It contains no word from 
which it can be inferred that the legislature or the courts can, on 
account of promises, pledges or enactments, compel a person to give 
evidence against himself. There is nothing from which it can be inferred 
that because the party may be exonerated from punishment that he may 
be compelled to give evidence against himself. The fact that he is not 
to be punished does not remove the fact that he has given evidence 
against himself. It is the giving evidence against himself under compul¬ 
sion that is forbidden. . . . The sole foundation for the assumption 

that the witness may be compelled'to answer is, that he is by his answer 
exempted from punishment, while the Constitution has no reference 
either directly or by implication to the punishment. This seems to me 
to be rather loose construction. It would be better to read the Consti¬ 
tution as we find it, and if it is defective leave to sovereignty, where the 
power belongs to change, alter or amend. Especially should this be so 
in a question that has been pronounced upon by such minds as McKinney 
and Nicholson, authors of the Constitution, contrary to the construc¬ 
tion now insisted for. 


92 


TENNESSEE CONSTITUTIONAL LAW. 


“ Judge McKinney was in the convention that framed the Constitu¬ 
tion of 1834, which contains in its exact words, and by number of 
article and section the clause now before us. In 1859 he wrote his 
opinion in Hatfield’s case, construing the statute now being considered, 
and used the language already attributed to him in reference to the 
Constitution made by himself. That opinion was the undisputed law of 
the land at the time of adoption of the Constitution of 1870, 
art. 11, sec. 1. . . . The present law was in force and use and not 

inconsistent with the Constitution, nor has it expired, been altered or 
repealed. In all questions involving the meaning of statutes and the 
intention of the legislature, it is the duty of courts to construe and 
define that meaniug, and when that is done the statute, as construed, is 
the law of the State. So that when the ordinance just cited was 
adopted, it made this statute, as construed by the court, the law, to be 
understood in the light of the decision. The convention is presumed to 
have known the law as construed, and to have so adopted it, and to have 
framed the article in question expressly with a view to the construction 
already given by the courts, when it transferred the language of the 
Constitution of 1834 to the Constitution of 1870, it as fully transferred 
the defined force and meaning of that language, and intended to do so.” 
Judges Cooper and Freeman dissented. 81 , 60 . State v. Warner. 1884. 

Adverse Comment Upon Defendant’s Failure to Testify, Error—When. 
— Lurton, J., held: “Adverse comment upon defendant’s failure to 
testify in a crimiual case, made by the State’s attorney in his argument 
before the jury, constitutes reversible error, where the court fails, upon 
proper exception being taken thereto, to require counsel to desist from 
that course of argument, and to instruct the jury to disregard what had 
already been said.” 89 , 231. Staples v. The State. 18J0. 


ONCE IN JEOPARDY. 


93 


ONCE IN JEOPARDY. 

Law in General. 

PAGE. 

Jeopardy Defined. 102 

Origin of this Provision. 103 

Constitution of United States—Its Relation 

to State Constitution. 95 

Offenses Against State and Federal Govern¬ 
ments. 107 

Offenses Punished by Municipal Corpora¬ 
tions Maybe Punished by State also. 107 
Special Judge—Incompetent to Try Case 
when Selected by Consent of Par¬ 
ties. See Art. G, Sec. 11, Glasgow v. 

The State, and Neil v. The State. 

No Appeal by State in Criminal Case—Rea¬ 
sons Why—Common Law Rule. 93 

Crime Committed Within one-quarter Mile 
of County Line—Jurisdiction. See 
Art. 1, Sec. 9, Armstrong v. The State. 83 

Discharge of Jury. 

Allowed When there is a Mistrial. 95 

Against Consent of Prisoner—Grounds of 

Necessity.. 99 

Without Objection by Prisoner—Contin¬ 
uance. 102 

Challenge of Juror for Cause After Defend¬ 
ant Put upon his Deliverance. 102 

Right to Have Jury Kept Together—Discre¬ 
tion of Judge—Nolle Prosequi. 102 

Art. 1, Sec. 10. That no person shall, for the same offense, 
be twice put in jeopardy of life or limb. 1 [Same as Const., 1834, art. 

1, sec. 10; Const., 1796, art. 11, sec. 10.] 

Appeal By the State. 

No Appeal for the State in a Criminal Case.— PER CURIAM : “ It is a rule 
of the common law that no one shall be brought twice into jeopardy for 
one and the same offense. . . . Because of this rule it is that a new 
trial can not be granted in a criminal case where the defendant is 
acquitted. A writ of error will lie for the defendant, but not against 
him. This is a rule of such vital importance to the security of the 
citizen that it can not be impaired but by express words.” 4, 111. 
2 The State v. Reynolds. 1817. 

Acquittal of Defendant — No Appeal by the State—Reasons Therefor 
— Deliverance by the Jury—Art. 1, Sec. 17—New Trial. — PECK, J.: “In 
the case of State v. Hitchcock, this point was raised before the court in 
1829, and upon the record this memorandum is indorsed by Peck, J.: 
‘The court are unanimously of opinion that no appeal lies for the State 


of Jury. 

PAGE 


With Consent of Defendant—Acts From 

Which Inferred. 103 

In Absence of Defendant. 103 

May be When Judge is Satisfied of Impossi¬ 
bility to Agree. 103 

Evidence of—Unsigned Minutes —When 

Sufficient. 104 

Indictments, Practice, Etc. 

Second Indictment, When First Defective 

—No Jeopardy. 104 

Escape of Defendant After Conviction- 

Second Trial—Order of Court. 104 

Small Offense Law—Former Conviction in 

Felony Case Before Justice of Peace. 105 
Acquittal on One Count—Conviction on 

Another—New Trial. 105 

Assault—Battery—One Offense. 105 

Indictment —Two Counts — Acquittal on 

One—Second Trial on Both. 105 

Indictment for Second Offense After Ac¬ 
quittal of First Charge. 106 

Indictment—Where Bad, Nolle Prosequi 

No Acquittal. 106 

Indictment—Reversal —Dismissal —Second 

Indictment. 106 

New Trial—May be Ordered When First 

was Without Plea. 107 


1 For indirect or unimportant mention of this section, see 22 , 71; 26 , 509 ; 28 , 677; 29 , 431; 
30 , 602; 36 , 552; 50 , 579 ; 62 , 321; 67 . 57; 85 , 342, 551. 

a Citing several cases. This case seems to have been overlooked by both the attorneys and 
judges, while the case of State v. Solomons was under consideration. 



























94 


TENNESSEE CONSTITUTIONAL LAW. 


from a verdict and judgment of acquittal on a State prosecution. The 
State, having established her jurisdiction and tried her experiment, should 
be content. To permit appeals might be the means of unnecessary vexa¬ 
tion. The practice has been, as now determined—first in our former 
Superior court, and, second, in the Circuit courts—to dismiss such appeals 
coming from the County court. We will follow these determinations.’ 
The case here cited had by appeal been taken from the County into the 
Circuit court, and there dismissed. It is now asked on what are these 
restrictions of the court founded? The Constitution provides that every 
person charged with an offense indictable shall have a speedy public trial 
by a jury, and that in certain cases of a serious character he shall not be 
twice put in jeopardy. . . . The legislature have fixed the tribunal 

having cognizance of the offense, and there is no ’act giving the State an 
appeal in direct terms; it would be dangerous to allow so great a latitude 
of construction as to give it by implication. If the party has had a public 
trial by a jury, the Constitution has been complied with, and, after his 
acquittal, should become a shield for him as to that offense. But, again, 
it is asked, if no appeal is given to the State, what authority is there 
for allowing it to the prisoner? The first reply I would make to this 
enquiry is that he could have it by certiorari , which, before the framing 
of our Constitution, applied in such cases, and the Constitution only 
extended the remedy to civil cases. ... By the certiorari he could 
not get a new trial, where justice had not been done, for the courts were 
open; and, for an injury done him in lands, goods, person, or reputation, 
he was entitled to redress without delay, and by due course of law. 
Bill of Eights, 17. If jeopardized in his person or rights, in any respect, 
by a judgment of a court contrary to law, he was not without his remedy. 

“But the language of our Acts of Assembly allowing appeals are 
taken as being broad enough to cover the case where, upon a conviction 
on a prosecution, the defendant desires another trial. The language of 
our act is, if the party be dissatisfied by the judgment, sentence, or 
decree of any County court, etc. ’Act of 1794, ch. 1, sec. 63. The term 
1 sentence’ in this section may well be taken as sufficient to allow the 
defendant, in a prosecution, his appeal. There are other acts to the 
same effect. The term ‘sentence’ can not apply to the State where she 
has failed in her prosecution; so that the act can not be taken by its 
letter as giving an appeal to the State, if the Constitution opposed no 
barrier, which it is believed it does. There is no reason or justice in 
restricting the language of our acts to civil cases, because it is of more 
consequence to guard the person and character of a citizen than to guard 
his property. If, for the smallest sum in damages, he be allowed his 
appeal from the judgment against him for it, how much more reasonable 
is it to allow the appeal where, by a sentence, his person is likely to be 


1 T. & S., 5244; M. & V., 6085, et seq. 



ONCE IN JEOPARDY. 


95 


injured? A fair interpretation of our acts, in favor of the liberty aud 
right the Constitution guarantees, may well be taken for a defendant ; 
while, as the terms used do not apply to the State, she shall not be per¬ 
mitted to experiment in the tribunal she has created, and then harass 
a defendant before another by appeal. With the Constitution alone before 
us, it is questionable if express words in an Act of Assembly giving an 
appeal to the State would authorize it. 

“ There is still another ground more conclusive to show that an 
acquittal by the jury must be conclusive and irreversible. The plea of 
the prisoner is ‘ not guilty, and for his trial puts himself upon the country.’ 
The oath of the jury is 1 well and truly to try, and true deliverance make, 
between the people of the State and the accused whom they shall have 
in charge.’ This is the proper form, as well in the higher offenses as in 
misdemeanors. 1 Chitty on Cr. Law, 551. Thus the accused submits 
his whole fate to his jury or country. When acquittal follows by the 
verdict, in the language of the law, there is a deliverance by the jury 
that the judge has no right to gainsay. The judge, on such a finding, 
can not grant a new trial. In England, a new trial can not, in general, 
be granted at the motion of the prosecutor; the only case put in the 
books where it may be allowed is where fraud has been practiced by 
keeping out of the way the witness for the Crown (1 Chit. Cr. Law, 600), 
or proceeding to trial without notice. Neither of these would be ground 
for a new trial in a criminal case in this country. The vigilance of the 
State guards against these accidents; and no case can be cited where 
such a ground has been laid for setting aside a verdict of acquittal. 
Indeed, the novelty of setting aside a verdict of acquittal in this 
country, and arraigning before a secoud jury, would give instant alarm; 
it must be seen that, if allowed, men would be harassed in the same 
prosecution by experiments to reach them, aud it would beget a feeling 
of distrust and iudignation toward the administration of the criminal 
law which would not be patiently borne.” 14 , 360. The Slate v. Solo¬ 
mons. 1834. 

Discharge of Jury. 

In Event of Mistrial, Jury May Be Discharged — Constitution of 
United States — Its Relation to State Constitution.— Defendant moved to 
be discharged on the ground that the mistrial and discharge of the jury 
against his consent was equivalent to an acquittal. Demurrer filed and 
overruled an appeal taken by the attorney general. Crabb, J.: “Were 
this a new question, I should be unprepared to say, what I now feel it 
my duty to determine, in defereuce to irresistible authority. Great 
difficulty would be experienced by me in arriving at the conclusion, 
which has now generally obtained, as to the proper interpretation of 
the constitutional and common law provision, ‘that no person shall, for 
the same offense, be twice put in jeopardy of life or limb.’ According 


96 


TENNESSEE CONSTITUTIONAL LAW. 


to the common acceptation of the expression, an individual would cer¬ 
tainly be put in jeopardy, or, in other words, in danger, when arraigned 
before the proper tribunal, placed upon his trial, and a jury actually 
sworn to pronounce upon his innocence or guilt. But for a long course 
of judicial opinion to the contrary, I should be at a loss to attach a 
different meaning to the expression, and might feel myself bound to 
hold that a second jury can not be empaneled to try a citizen for a 
felony after he has been once jeopardized or endangered by a submis¬ 
sion of his cause to a competent court and a jury, upon a valid indict¬ 
ment. A fear that the power in question would sometimes be exercised 
for the purposes of oppression and persecution, would make me hesitate 
long before I could consent to abandon a construction, which would seem 
to be most consonant with the meaning of the words, and withal, most 
favorable to life and liberty. 1 Haywood’s Rep. 241. I should not be 
prepared readily to submit to a different interpretation for anything to 
be found in the English books; although they clearly, and upon the 
authority of numerous precedents, sanction the discharge of a jury for 
sufficient cause, and the empaneling of a second one. The older English 
books and cases are all referred to and reviewed in the case of the two 
Kenlocks (Foster’s Rep. 22); and the modern ones are attentively exam¬ 
ined in some of the American books to be referred to below. 

“ The prevalent, the settled interpretation, in England, of the prin¬ 
ciple or provision before alluded to, now is, that a man shall not be put 
upon his trial a second time after he has been once tried by a competent 
court upon a valid indictment and acquitted. The acquittal, however, 
according to the most modern authorities, I take to include the case of 
an illegal discharge of the jury, in which case the defendant is virtually 
acquitted, and is entitled to be also discharged. 

“In the United States I find a weight of coincident adjudication 
which I can not, I believe, with propriety resist. The Supreme court of 
Massachusetts, the Supreme court of New York, and above all, the 
Supreme court of the United States, fitted more than any other tribunal, 
from the necessary habits and researches of its members, to decide 
upon American constitutional law, have, without, so far as I can dis¬ 
cover, a dissenting voice, all held that a court, in the exercise of a sound 
discretion, may discharge a jury even in a capital case, and that the 
defendant may be again tried. Commonwealth v. Boyden, 9 Mass. Rep., 
494; People v. Olcott, 2 Johnson’s Cases, 301; Same v. Goodwin, 18 
John. Rep., 187; United States v. Perez, 9 Wheaton’s Rep., 579. 

“In Goodwin’s case, Chief Justice Spencer, delivering the unanimous 
opinion of the court, says: ‘That although the power of discharging a 
jury is a delicate and highly important trust, yet it does exist in cases 
of extreme and absolute necessity; and it may be exercised without 
operating as an acquittal of the defendant; it extends as well to felonies 


ONCE IN JEOPARDY. 


97 


as misdemeanors; and it exists and may be exercised in cases where 
the jury, from the length of time they have been considering a cause, 
and their inability to agree, may be fairly presumed as never likely to 
be overcome, unless compelled to do so from the pressing calls of 
famine or bodily exhaustion.’ In Perez’s case the Supreme court of the 
United States say: ‘We are of opinion that the facts constitute no 
legal bar to a future trial. The prisoner has not been convicted nor 
acquitted, and may again be put upon his defense. We think that, in 
all cases of this nature, the law has invested courts of justice with the 
authority to discharge a jury from giving any verdict, whenever, in 
their opinion, taking all the circumstances into consideration, there is a 
mauifest necessity for the act, or the ends of public justice otherwise 
would be defeated. They are to exercise a sound discretion on the sub¬ 
ject, and it would be impossible to define all the circumstances which 
would render it proper to interfere. To be sure, the power ought to be 
used with the greatest caution, under urgent circumstances, and for 
very plain and obvious causes; and in capital cases especially, courts 
should be extremely careful how they interfere with any of the chances 
of life, in favor of the prisoner. But, after all, they have the right to 
order the discharge,’ etc. 

“ Cases may be supposed where a court would act very improperly 
in discharging a jury; several are to be found in the English books; and 
I concur entirely with the Supreme court of New York, in considering 
it as one instance of an abuse of the power, where a juror was with¬ 
drawn, because the public prosecutor was not prepared with his proofs. 
18 John. Rep., 206; 2 Caine’s Rep., 304. 

“ The presumption in this, as in all other cases, is that the judge 
performs his duty. If it clearly appears to this court, however, from a 
bill of exceptions taken at the time of discharging the jury, that the 
discretion of the judge was improperly exercised, the power and duty 
are devolved upon us of revising the proceedings of the inferior court; 
we must say that such discharge was tantamount to an acquittal, and 
and that under such circumstances a defendant should be discharged. 
In the case before us no exception was taken by the defendant; nor 
can we see anything authorizing us to conclude, that there was an illegal 
exercise of the conceded discretion. It is the opinion of the court that 
the judgment of the Circuit court, discharging the defendant at the 
subsequent term, on the mere ground of a discharge of the jury at a 
prior term, be reversed; and that the defendant enter into a recogni¬ 
zance for his appearance at the Circuit court, to be tried upon the issue 
joined.” 

Catron, J.: “I have been myself relieved in this cause from much 
examination and labor, for the reason, that the question to be decided 
is not before the court for the first time, since I have been a member 


7 


98 


TENNESSEE CONSTITUTIONAL LAW. 


thereof. It arose, and was a principal question in the State against 
Bob, a negro slave, heard at Sparta last term. Bob had been charged, 
under the Acts of Assembly, before justices of the peace for White 
county, with the murder of Hannah Shadam and her child; a jury was 
empaneled, and the proofs in the cause submitted to its examination, 
which jury disagreed; and, after a fair trial to come to a verdict, and a 
failure, a mistrial was ordered by the justices, contrary to the consent 
of the prisoner. It was then moved that he be discharged, which was 
also refused; the defendant was tried a second time and found guilty. 
The cause was brought to the Supreme court, at the August term, 1825, 
at which time the point did not arise, the court only ordering the Circuit 
court to issue a certiorari to bring the cause to that court, and proceed 
upon the same according to law. 

“In that court it was moved, that the finding of the jury on the 
second trial, and the judgment of death thereon, be quashed, and the 
defendant discharged. The whole proceeding before the justices was 
quashed by the Circuit court, and the defendant indicted at common 
law, tried, found guilty, and sentenced; from which he took his writ of 
error to the Supreme court, where the cause was heard at August 
term, 1826. This court quashed the proceedings of the Circuit court, 
upon the common law indictment, as not having been warranted by our 
statutes, and then it was again moved that the defendant be discharged, 
because he had been once put in jeopardy, by the submission of his 
cause to the jury, which disagreed. The question was brought directly 
before the court, who did not doubt but that it was bound to discharge 
the defendant, although a slave, if the principle was without exception, 
that a mistrial was equivalent to an acquittal. 

“Knowing the cause would come before the court at the term of 
1826, the question was examined by me, through the whole range of 
British and American authorities, before the court came on. The prin¬ 
ciple that the defendant could not be put upon his trial a second time, 
after the first jury had been discharged upon disagreement, had gen¬ 
erally, not to say uniformly, obtained in the Circuit courts iu capital 
cases in this State, so far as they came within my knowledge. My 
opinions of the English common law, and the Constitutions of the United 
States and our own State, were on the side of the construction adopted 
by the Circuit courts; such was also the opinion of Judge Haywood, 
whose experience and learning upon the subject were great, and entitled 
to very high respect. 

“After, however, giving the matter every consideration that its great 
importance entitled it to, Judge Haywood and myself were compelled 
to give way to the weight of the American authorities, cited by Judge 
Crabb, particularly to that of the Supreme court ol the United States, 
in the case of Perez, where the clause of the Constitution of the United 


ONCE IN JEOPARDY. 


99 


States, ‘that no man shall be twice put in jeopardy of life or limb, for 
the same offense/ received a construction, which, upon that instrument, 
is binding authority upon the State courts. 

“That the provision in the Constitution of the United States is bind¬ 
ing entirely upon all the State courts in the Union, and secures the 
privilege of not being twice put in jeopardy, to every citizen of every 
State, notwithstanding the State Constitution may have no such pro¬ 
vision, can not be denied. It is the paramount law of every State, over 
the Constitution and laws of the States; aud although our own Consti¬ 
tution has a similar provision, we did not feel ourselves warranted in 
giving it a construction different from that given to the Constitution of 
the United States, by the tribunal possessing the power (and of pre¬ 
eminent qualifications) to fix the construction of that instrument. We, 
therefore, followed that decision, and ordered the defendant to be again 
put upon his trial, before the justices who first submitted his cause to 
the jury which disagreed. Judge Whyte had been of the opinion, when 
the cause was first taken up in 1825, that the defendant could again be 
put upon his trial, notwithstanding the discharge of the former jury. 
Judge Haywood and myself concurred with him. Judge Peck was con¬ 
fined by sickness and absence from the court. I have no doubt that the 
discretion of discharging a jury, in a capital case, by the Circuit court, 
is the most delicate duty that court has to perform, and should be exer¬ 
cised with all possible caution; that its exercise is subject to the revision 
of this court; and that where the power shall be in any degree mistaken 
or abused, the defendant ought to be discharged. For as much as the 
cause of The State v. Bob is not reported, and if reported there are no 
reasons given in the opinion why it differs from the well-known propo¬ 
sitions and arguments of counsel, of Judge Haywood and myself, upon 
the point decided, I have thought it necessary to say thus much in 
explanation. Judgment reversed.” Whyte, J., concurred. Peck, J., 
dissented. 8,280. The State v. Waterhouse. 1827. 

Discharge of Jury Against Consent of Prisoner — Grounds of Neces¬ 
sity.—T urley, J.: “The right of trial by jury has always been regarded 
by the English and American jurists as one of the most sacred princi¬ 
ples of the law, one to which the citizen is more deeply indebted than 
to any other for that security to life, liberty, and property guaranteed 
in Great Britain and the United States to an extent unknown in other 
countries, aud the preservation of which, in its purity and independence, 
has at all times been guarded with a most watchful and jealous eye. 
Therefore it is that an attempt, whenever made, by the courts to inter¬ 
fere with the privileges of a jury, and endanger their independence and 
the consequent security of the subject, has at all times been promptly 
resisted, aud though occasionally, in times of great political excitement, 
in England, it may have succeeded for the day, yet, to the honor of the 


100 


TENNESSEE CONSTITUTIONAL LAW. 


legal profession, the usurpation has always been rebuked, and the proper 
balance of power between the court and the jury quickly restored. It 
is a well-understood maxim of our law that the judges are to expound the 
law, and the jury to ascertain the facts, neither of which has the power 
to interfere with the province of the other. The jury, in their delibera¬ 
tions upon the facts, are as independent of the court as the judge, in 
determining the law, is of the jury; and the consequence is that, when 
a case has been submitted to a jury, there it must remain until it has 
been decided by them, or is withdrawn from their consideration, not at 
the will and pleasure of the court, but under circumstances justified by 
the law. 

11 In the case now presented for the consideration of this court, the 
jury returned no verdict, and the case was taken from their considera¬ 
tion, and they discharged, against the consent of the prisoner. And the 
question is whether, under the circumstances, this was not an illegal 
exercise of power on the part of the court below, and the prisoner, of 
consequence, entitled to her discharge. This is a question of much 
importance, and although it has not, perhaps, been directly settled by 
adjudicated cases in this State, we feel much relieved in the conviction 
that it is well settled, both by principle and authority, in England, and a 
very respectable portion of the States of this Union. Lord Coke, in his 
1 Institute, 227, b, and 3 Institute, 100, lays it down as a general rule 
that a jury sworn and charged by the court in cases affecting life or 
member can not be discharged by the court, or any other, but they ought 
to give their verdict. This doctrine, upon the authority of Coke, was 
afterwards engrafted by Hawkins and Blackstone into their elementary 
treatise on the criminal law. And although this principle was contro¬ 
verted in the case of Ferras, cited in Sir Thomas Raymond, 84, and in a 
case of larceny reported in 1 Yentress, 69, and one reported in Salkeld, 646, 
yet it can not be said to have been fully examined and completely over¬ 
ruled until the decision of the case of the two Kinlocks, reported in 
Foster, from page 22 to 40, when it was considered by all the judges but 
one that the general rule laid down by Lord Coke had no authority to 
warrant it, and could not be universally binding, but that there were 
exceptions to it, and in that case determined that the court had power 
to discharge a jury at the request of the prisoners, assisted by able 
counsel, and with the intent of imparting to them a privilege which they 
could not otherwise have enjoyed. Since that decision it has not been 
doubted that the courts have the power to discharge juries without their 
rendering a verdict, but only, as we think, in cases of manifest necessity. 
All the cases of exception (to the general rule as laid down by Lord 
Coke) specified in the elaborate opinion of Mr. Justice Foster, in the 
case of the Kinlocks, are cases of necessity, and there is no authority 
to be found in the English books which sustains the position that a jury 


ONCE IN JEOPARDY. 


101 


may be discharged in a criminal case without the consent of the pris¬ 
oner, but from necessity. Such, also, we think, has been the train of 
the decisions in the United States.” 

After reviewing these decisions, Judge Turley continues: “This 
brings us to the examination of what constitutes this necessity. We 
are of opinion that the causes which create this necessity may be 
classed under three heads: First, where the court is compelled by law 
to be adjourned before the jury can agree upon a verdict; second, 
where the prisoner, by his own misconduct, places it out of the power 
of the jury to investigate his case correctly, thereby obtaining an unfair 
advantage of the State, or is himself, by the visitation of Providence, 
prevented from being able to attend his trial; and third, where there is 
no possibility for the jury to agree upon and return a verdict. 

“It is upon the last of these propositions that the question in the 
case under consideration arises. The jury were empaneled on Thursday 
evening, at 2 o’clock, and were discharged at 9 o’clock on Friday morning, 
because they could not agree upon a verdict, the court continuing its 
session until some time on the Saturday following. Now, the question 
is, was this such a case of necessity as justified the court in discharging 
the jury? A jury may not be able to agree upon a verdict for many 
reasons, such as sickness or insanity of one or more of the jurors, 
exhaustion of the jury before they have been able to come to a decision 
of the case, the absconding of one of the jurors without the consent of 
the court. These are cases put in the books, and with others of like 
character, constitute what we will distinguish as cases of physical impos¬ 
sibility. A jury may also not be able to agree because their minds can 
not come to the same conclusion from the facts submitted to their con¬ 
sideration. This, we would consider as a case of moral impossibility; 
and we are called upon to say whether it constitutes a necessity for the 
discharge of a jury before the time arrives when the court must adjourn. 
We think it does not. . . . There is no English decision, then, sus¬ 

taining the position that the court has the power to discharge a jury 
because they can not agree upon a verdict, unless there be some physical 
impossibility connected with it, and so we think is the spirit of all the 
American authorities when properly understood.” 

Judge Turley then reviews the decisions of the U. S. Supreme court 
and of the courts of other States, and concludes: “Upon the whole, the 
power of discharging a jury, against the consent of the prisoner, is of 
such a dangerous character that we hesitate uot in saying that it should 
not be exercised by the courts where the jury can not agree on a verdict, 
unless they be prevented by a physical impossibility from so doing, and 
that when such an impossibility does not exist the jury should be kept 
together until such time as the court is about to adjourn, when, of 
necessity, they must be discharged. This is the situation of the case 


102 


TENNESSEE CONSTITUTIONAL LAW. 


under consideration. There was no physical impossibility for the jury 
to agree, and they were discharged at least twenty-four hours before the 
court adjourned, which was an improper exercise of power on the part 
of the court, and the judgment must therefore be reversed and the 
prisoner discharged.” 18, 536. Mahala v. The State. 1837. 

Discharge of Jury Without Objection—The Mahala Case Doubted.— 
McKinney, J., held: “Where a jury in a case of felony, being unable to 
agree upon a verdict, were discharged without objection of prisoner, 
whereupon the case was continued by consent, and at a subsequent 
term the prisoner was tried and convicted without exception to the dis¬ 
charge of said jury, he can not take advantage of such irregularity, if 
there be any, upon appeal to the Supreme court, but must be held to 
have waived it.” With reference to the doctrine announced in the Mahala 
case Judge McKinney said: “ Whether this doctrine is maintainable upon 
the weight of authority, or sound reason, is a question well worthy of 
consideration, when a proper occasion shall be presented. But the case 
before us does not necessarily demand a discussion of that question.” 
35, 475. Morgan v. The State. 1856. 

Challenge of Juror for Cause After the Prisoner Has Been Put Upon 
His Deliverance.— Turley, J.: “It is too late, after a jury has been 
sworn, to challenge any of its members propter de fectum; and therefore, 
if the court permit the attorney general, not only after the jury has 
been sworn, but ‘charged’—that is, after the prisoner has been placed 
in the hands of the jury for trial—to challenge ten of the jurors for 
cause, and set them aside against the prisoner’s consent, and compel 
the prisoner to select ten others, who, in conjunction with the remaining 
two, returned a verdict against him, the prisoner is discharged.” 20, 
253. Ward v. The State. 1839. 

Jeopardy—What it Is—Right to Have the Jury Kept Together — 
Discretion of the Judge — Nolle Prosequi.— MILLIGAN, J.: “When, upon 
a valid indictment, the accused is regularly put upon his trial in a com¬ 
petent court, the jury elected and sworn and thereby becomes a part of 
the tribunal sitting for the prisoner’s trial, and all the preliminary things 
are ready for the trial, he has then reached the jeopardy from the repe¬ 
tition of which our constitutional rule protects him. The jury is then 
charged with his deliverance; and his life, undoubtedly, in capital cases, 
is in jeopardy during their deliberations. It may be conceded, in cases 
of legal necessity, that the jury may be discharged, or a juror withdrawn, 
a mistrial or nolle prosequi entered, with or without the prisoner’s con¬ 
sent; but, if there be anything short of such legal necessity, or the 
prisoner’s assent, how can the court, without violating the constitu¬ 
tional provision, take from the prisoner his right to have the jury kept 
together until they have agreed, so that he may not be put in jeopardy 


ONCE IN JEOPARDY. 


103 


a second time? The signification of the word ‘jeopardy/ in its common 
use, is, ‘exposure to death, loss, or injury, hazard, danger, peril;^ and 
to restrict its meaning to a verdict actually given, is to impose upon it 
a limitation which the words ‘twice in jeopardy/ do not mean. When¬ 
ever the jury is charged with the deliverance of the prisoner in a 
capital case, on a valid indictment, he is in jeopardy—in danger of life 
and limb; and the court can not, without sufficient cause, or the assent 
of the prisoner, discharge the jury, no matter how defective the proof 
may be, without entitling him, under the Constitution, to his discharge. 
1 Wharton's American Cr. Law, 573 to 580; Bishop's Cr. Law, 2d ed., 
sec. 660, and authors cited; also, 2 Graham & Waterman on New Trials, 
88 et seq. It may be, and we doubt not it is so, that less strictness in 
offenses punishable in the penitentiary, or by fine and imprisonment, is 
required, than in offenses punished capitally. In such cases, the judge 
undoubtedly has a larger discretion, and may exercise it in necessary 
cases, for the accomplishment of the ends of justice." 45, 317. The 
State v . Conner. 1868. 

Consent of Prisoner—Acts From Which This Will Be Inferred.— 
Hawkins, J., held: “If a verdict is so defective that a judgment can not 
be rendered upon it, and the accused fail to have it corrected, or to 
object to the jury being discharged, or to their verdict, in such a case 
the law will infer that he consented thereto, and thereby waived his 
objection to being again put upon trial as in case of a mistrial." 47, 
516. Murphy v. The State. 1870. 

Discharge of Jury in Absence of Accused. — TURLEY, J., held: “The 
rule that no one shall be twice put in jeopardy for the same offense does 
not obtain in cases where the verdict of guilty was returned and the 
jury discharged in the absence of the accused. A new trial should be 
granted in such case." 70, 156. The State v. Hayes. 1879. 

Origin of This Provision — Jury May Be Discharged When Judge is 
Satisfied of Impossibility of Agreement. — TURNEY, J., held: “A jury in a 
criminal cause may be discharged by the court without the consent of 
the accused, where they have had a sufficient length of time to delib¬ 
erately, carefully and fully consider the entire case as presented by its 
facts and as governed by the rules of law given in charge by the court, 
and there is no possibility of an agreement upon and return of a verdict, 
but the court should be satisfied of the impossibility of an agreement, 
and the reasons for such conclusion by the court should be set out in its 
order of discharge so that a revising court may consider them upon a 
plea of ‘ once in jeopardy.' . . . The origin of the constitutional pro¬ 

vision was the desire to keep out of our institutions a practice that had 
at one time grown up in England of trying offenders, or persons so 
accused, as often as might please those who chose to prosecute, without 


104 


TENNESSEE CONSTITUTIONAL LAW. 


regard to former trials, verdicts and judgments, and was, as I think, 
meant to control in cases where a trial had once been had and a verdict 
rendered, or even prevented by fraud on, or improper interference with, 
the rights of the accused.” 72, 363. The State v. Pool. 1880. 

Unsigned Minutes Showing Discharge of Jury Sufficient Evidence— 
When.— Freeman, J., held: “An entry made by a clerk, but never signed 
by the presiding judge, by reason of his sickness and death, showing 
the discharge of a jury in a capital case by consent of the prisoner, is 
sufficient evidence of the fact of discharge by consent.” Sneed, J., 
dissented. 50, 493. Pat Moore v. The State. 1872. 

Former Acquittal and Conviction — Indictment—Different Grades of 
Offense — Practice. 

Former Acquittal — Quashing Indictment—Second Indictment.— 
Cartjthers, J.: “It seems that a jury was sworn to try the defendant 
for the same offense upon another indictment, and it appearing that the 
same was defective for the want of a prosecutor, and perhaps in other 
respects, the same was quashed upon motion of defendant’s counsel, 
and the jury discharged. The present indictment was then found. 
The discharge of the jury, in the first case, resulted from the successful 
motion of defendant to quash the indictment under which he had then 
been put upon his trial. He was never in jeopardy on that charge, as 
it was not good in law, but liable to be quashed at any time.” 34, 290. 
Pritchett v. The State. 1854. 

Escape of Defendant After Conviction — Second Trial — Order of 
Court. —The prisoner, Andrews, was present in court until the jury 
retired to consider their verdict, when he escaped from custody. The 
jury rendered a verdict of guilty, and judgment was pronounced. The 
prisoner was again arrested, and judgment was suspended. At March 
term, 1855, the prisoner being again in custody before the court, his 
counsel moved that said verdict and judgment rendered at a former 
term be set aside, which was done. The prisoner was again put on his 
trial, which resulted in his conviction, from which he appealed in error. 
Totten, J.: “It is now insisted that it was error to put the prisoner a 
second time on his trial, while the former conviction remained unre¬ 
voked and in force; that the judge had no power to revoke and annul a 
conviction had at a former term of the court, and that his action in this 
respect was merely void. The general rule is that the court has no power 
over its final orders and judgments rendered at a former term. The 
matter in judgment is concluded in that forum, and the record has 
become permanent and inviolable, unless the same be reversed or 
annulled by the action of a court of revisory jurisdiction over the sub¬ 
ject. But the rule has relation to orders and judgments which the 


ONCE IN JEOPARDY. 


105 


court at the former term had power to make, and which are not in them¬ 
selves merely void. A void order or judgment is of no effect or conse¬ 
quence, and nothing can be predicated of it. No action is required to 
revoke it; it is null in itself. . . . The order made to set aside the 
verdict and judgment rendered at a former term was void, for the want 
of power in the court to make such order.” 34, 351. Andrews v. The 
State. 1855. 

Small Offense Law — Former Conviction Before a Justice of the Peace 
in Felony Case.— Nicholson, J., held: “A plea of former conviction 
before a justice of the peace, under the small offense law, is not a good 
bar to an indictment for felonious assault.” Nelson, J., dissented. 50, 
321. 1 Mikels v. The State. 1871. 

Acquittal on One Count — Conviction on Another — New Trial.— 
Green, J., held: “Where a defendant has been convicted on one count 
of an indictment, and acquitted on the other counts, a motion by him 
for a new trial can not be understood as going further than to the count 
on which he was found guilty, and it is error in the court, in such a case, 
to set aside the whole verdict; and if, on a new trial, the prisoner is 
acquitted on the count on which he had been convicted on the former 
trial, and convicted on one of the counts on which he had been acquit¬ 
ted, it was error to render judgment on the conviction, and the defend¬ 
ant must be discharged.” 17, 334. Campbell v. The State. 1836. 

Assault—Battery—One Offense.— TOTTEN, J., held: “If a party be 
charged with an assault, and convicted thereof, he can not afterwards 
be punished for the battery committed at the same time.” 32, 494. 
The State v. Chaffin. 1852. 

Two Counts—Acquittal on One, and Second Trial on Both.— HAR¬ 
RIS, J.: “The error assigned is that the prisoner was tried upon both 
counts in the indictment, when he had been previously acquitted on the 
second count. There is no error in this. The jury were expressly 
instructed that no conviction was sought upon the second count, and 
their verdict is that they find the defendant guilty of an ‘ assault with 
intent to commit a rape upon Mirah Looper, in manner and form as 
charged in the indictment.’ The first count is the only count in the 
indictment that charges him with an assault with intent to commit a 
rape; therefore, this is clearly a finding upon the first count, and upon 
that count he never had been acquitted. The case of Campbell v. The 
State, 9 Yerg., 333, relied on by the plaintiff in error, is wholly different 
from the case before the court. In that case the defendant was con¬ 
victed on a couut upon which he had previously been acquitted, aud for 


1 Overruling Hodges v. The State, 45 , 7. 



106 


TENNESSEE CONSTITUTIONAL LAW. 


that reason the judgment was properly arrested. We have seen, how¬ 
ever, that such is not the case.” 1 36, 608. Major v. The State. 1857. 

Accessory Before the Fact. — COOKE, J., held: “An acquittal under 
an indictment charging murder, is not a sufficient plea to a subsequent 
indictment for the offense of being accessory before the fact.” 82, 475. 
Morrow et al. v. The State. 1884. 

Nolle Prosequi Entered Where Indictment is Bad is No Acquittal.— 
Caruthers, J.: “It would seem to be a very strange incongruity in the 
law, to hold that a nolle prosequi after the case was submitted to a jury 
upon a bad indictment would operate as an acquittal of the prisoner 
upon the ground that he had been in jeopardy, in the sense of the Con¬ 
stitution, but that such would not be the effect of a trial and conviction 
when the judgment was reversed for the same or any other case. It 
would seem that the jeopardy was more imminent in the latter case 
than the former, by many degrees. Bishop, at the close of section 663, 
says that, although there is no direct adjudication on that point, yet he 
thinks it clear that ‘ if, on coming in of the verdict, the prosecuting 
officer discovers a defect in the indictment, he may, instead of moving 
for sentence, enter a nolle prosequi and indict anew. 1 Whether we would 
go so far, or in what other cases than the one under consideration we 
would hold that a nolle prosequi, after the traverse jury was elected and 
sworn, should entitle the prisoner to his discharge, need not now be 
determined, as it is safest to leave other cases to be considered on their 
own facts, as they may arise. It is enough for this case to hold, as we 
do, that a nolle prosequi entered with the assent of the court, even after 
the jury is empaneled and proof heard, where the indictment is bad, 
does not operate as an acquittal, as there was no legal jeopardy.” 35, 
690. Walton v. The State. 1856. 

Dismissal of Indictment—Discharge — Second Indictment.— NELSON, 
J.: “The plea in this case, shows that, after the judgment was reversed 
and the cause remanded, the indictment, together with all the proceed¬ 
ings against the defendant, was dismissed, and so the former conviction 
resulted in nothing. A trial upon the present indictment will not, there¬ 
fore, put the defendant twice in jeopardy, within the meaning of the 
Constitution. . . . The provision in the Code, 5211, has no applica¬ 
tion to this case, as no statute has been passed to make the former 
indictment good.” 2 3 50, 67. The State v. Thurston. 1870. 

1 There can be no doubt that a former acquittal or conviction must be for the same identical 
offenses, but it is not necessary that all the particulars charged in either indictment should be 

the same. Meigs’ Digest, vol. 2, p. 905, citing, 50,85; 17 , 376 and 335; 25,414; 31,14; 10,27; 
and other cases. 

3 M. & V.,6041, et seq. 



ONCE IN JEOPARDY. 


107 


WJien Trial is Without Plea, New Trial May be Ordered—Conviction.— 

Deaderick, J., held: “Where there is a trial without a plea of not 
guilty, the court may, on the motion of the prisoner to arrest the judg¬ 
ment, set aside the verdict and order a new trial. In such case the 
record will not support a plea of former conviction.” 50, 252. Link 
v. The State. 1871. 

Offenses Against Federal and Municipal Governments. 

Offenses Against State and Federal Governments.—HAWKINS, J., held : 
“A prisoner may be subjected to different, and a double punishment, for 
the same act making two different offenses. The same act making two 
different offenses, when it is in violation of the laws of a State, and also 
of the laws of the United States; and the subjecting the party to a 
double punishment for the same act, when he is guilty of two offenses, 
can not be held to be in violation of the Constitution of the United 
States, by placing the party twice in jeopardy for the same offense.” 
44, 146. The State v. Rankin. 1867. 

Municipal Corporations — Nature, Origin and Growth in England and 
America — Objects—Benefits — Offenses Punished By Corporations May 
Be Punished By State Also.—F reeman, J. : “The question presented for 
our decision is, whether, where a party has been convicted and punished 
for keeping a gaming house by the municipal authorities of a town or 
city, this fact is a bar to the prosecution for the same offense by the State. 

“We may remark, that art. 5 of Amendments to Constitution of the 
United States, providing, among other things, that ‘no person shall be 
subject for the same offense to be twice put in jeopardy of life or limb/ 
has no application to the States, being only a limitation on the Federal 
Government. 7 Peters, 243; 7 Wall, 326, and cases there cited. Our own 
Constitution, art. 1, sec. 10, is, that ‘ no person shall for the same offense be 
twice put in jeopardy of life or limb/ the language being identical with 
that of the Constitution of the United States. Whether this clause, or 
the same provision in the Constitution of the United States, applies to 
offenses, the punishment of which does not extend to ‘life or limb/ or 
to crimes as distinguished from misdemeanors, and was not intended 
originally to give the high sanction of a constitutional guaranty against 
the repetition of the prosecution only in such cases, we need not decide 
at present. That this is the literal meaning of the language is pretty 
clear, and it was certainly understood to apply only to offenses punished 
by loss of life or limb, by our earlier judges on this bench, as held in 
the case of The State v. Reynolds. . . . 

“ Iu endeavoring to arrive at a proper conclusion on this question, 
we must remember, according to the idea of Judge Cooley, in the case 
of The People v. Harlburt, 24 Mich. R., 96, that the Constitution of our 
State assumed the existence of counties and municipal corporations, the 


108 


TENNESSEE CONSTITUTIONAL LAW. 


latter having and exercising such powers of local self-government under 
grants in charters from the legislature as might be necessary for their 
proper regulation, and the maintenance of the peace, good order and 
protection of the people thus aggregated in large masses. That the 
existence of such municipal corporations being assumed and recognized 
in the Constitution, as part of the arrangements contemplated to make 
up the machinery of the great corporate body, the State, it must be 
fairly understood that the people or convention contemplated that these 
corporations should have and exercise all the usual powers proper and 
necessary for the perpetuation of their existence, and for the due regu¬ 
lation of their peculiar life, so to speak. We therefore conclude, that 
whatever may have been the usual powers granted or ordinarily held by 
these corporate bodies at the organization of our government, and what¬ 
ever powers necessary and proper to be exercised by them, as an inci¬ 
dent to their existence, as part of the machinery of the government of 
the State were expected to be continued to them, under legislative 
grants in their charters, and this by the very fact of the clear recogni¬ 
tion of the fact, that such bodies should exist in the Constitution of our 
State. . . . 

“As a matter of history, we know that the organization of municipal 
corporations was one of the most efficient agencies by which freedom 
and government by law, rather than strong hand, was introduced aud 
fostered in Europe in the Middle Ages. Robinson, in his view of the 
progress of society in Europe, Introduction to History of Charles V, 
p. 19, in referring to the institutions which had tended to secure the 
liberty and independence of the people, says: ‘The forming of cities 
into communities, corporations or bodies politic, aud granting them 
privileges of municipal jurisdiction, contributed more, perhaps, than 
any other cause to introduce regular government, police and arts, and 
diffuse them over Europe/ than any one of the various causes which he 
enumerates in his essay, as contributing to these desirable ends. In 
enumerating the powers which were thus obtained by these chartered 
committees, among other important rights, the same author says: 1 They 
were recognized as bodies politic to be governed by a council and mag¬ 
istrates of their own nomination. These magistrates had the right of 
administering justice within their own precincts, of levying taxes, in 
embodying and training to arms the militia of the town, which were offi¬ 
cered by men appointed by the municipal authorities. These institutions 
originating in this form in Italy in the Twelfth Century, adopted in France 
soon after, were in no great length of time transferred to England, the 
country from whence we derive our jurisprudence. There, it is true, 
modified in some of their aspects to meet the wants of a great people, 
and being gradually, to a greater or less extent, subordinated to the 
general control of the supreme legislative body, the Parliament, yet still 


ONCE IN JEOPARDY. 


109 


maintaining many of their chartered rights as inviolable, and clinging 
to them as essential to their freedom and even their existence, as one 
of the subordinate political divisions of the State, continued up to the 
time of the separation of the Colonies from that country. 

“In this form we received this institution, and our political fabric 
has been reared, so to speak, with the municipal corporation as one of 
its integral elements, forming, as we may readily see, one of the neces¬ 
sary parts of the social and political organization under which we live, 
without which the government of the State would be incomplete, and 
utterly fail to attain one of its great ends, the protection and security 
of person and property in towns and cities, as well as throughout its 
entire territory. With this history of these institutions, and in view of 
the necessity of having such bodies, from the organization of the gov¬ 
ernment down to the present time, acts of incorporation have been 
granted to our cities and towns, granting them such powers as were 
deemed proper for the attainment of the ends of their creation. . . . 

That the offense of keeping a gaming house is one that may and does 
present many elements of criminality in a city or town, by debauching 
the morals of the youth, presenting temptations to all inclined to yield 
to them, calculated to lead them into the ways of vice and crime, and 
that these evil influences are far more active and powerful in towns 
and cities than in the country, therefore productive of a wider spread 
injury, and one specifically affecting the interest and good morals of the 
incorporated community, will be readily admitted by all. It is, there¬ 
fore, highly proper that this aggravated nuisance should be subject to 
the control of and restraints imposed by the ordinances of these local 
governments peculiarly affected by the evil. 

“We therefore conclude, that in view of the facts and necessities of 
the case, it can not be understood that by the common law of any civil¬ 
ized country of the present day, deriving its jurisprudence from English 
source — that the rule forbidding a party to be punished twice for the 
same offense—was intended to include, and be held to apply to the case 
of punishment by these corporate authorities, for the wrong done them 
and their peace, security, and morals, so as to be a bar to a prosecution 
on the part of the State, and infliction of such punishment as she may 
deem proper to inflict by law upon her citizens. The fact that he is 
both a citizen of the State and also of a corporation, and is therefore 
amenable to both jurisdictions for any violations of the law of either, 
and that each may choose to forbid an act, and inflict a penalty for its 
violation, ought not, we think, make any difference. He can readily 
avoid such inflictions by obedience to the laws of the community of 
which he is a member, and if he chooses to defy constituted authority, 
courts organized, not only for the punishment but suppression of crime, 


110 


TENNESSEE CONSTITUTIONAL LAW. 


as far as they may be able, should feel but little sympathy with such 
offenders.” Tenn. Leg. Rep., vol. 3, p. 177. 1 Greenwood v. The State. 1873. 


Art. 1, Sec. 11. That laws made for the punishment of 
acts committed previous to the existence of such laws, and by 
them only declared criminal, are contrary to the principles of a 
free government; wherefore, no ex post facto law shall be 
made 2 . [Same as Const. 1834, art. 1, sec. 11; Const. 1796, art. 11, sec. 11.] 

Art. 1, Sec. 12. That no conviction shall work corruption 
of blood or forfeiture of estate. The estate of such persons as 
shall destroy their own lives shall descend or vest as in case of 
natural death. If any person be killed by casualty, there shall 
be no forfeiture in consequence thereof. [Same as Const. 1834, art. l, 
sec. 12; Const. 1796, art. 11, sec. 12.] 

Art. 1, Sec. 13. That no person arrested and confined in 
jail shall be treated with unnecessary rigor. [Same as Const. 1834, 
art. 1, sec. 13; Const. 1796, art. 11, sec. 13.] 


PRESENTMENT —INDICTMENT —IMPEACHMENT. 

Art. 1, Sec. 14. That no person shall be put to answer any 
criminal charge but by presentment, indictment, or impeach¬ 
ment 3 . [Same as Const. 1834, art. 1, sec. 14; Const. 1796, art. 11, sec. 14.] 

Forms Long* Established — Caption of Indictment. — CRABB, J.: “The 
forms loug established become the law, and ought not to be departed 
from, even in civil proceedings where left to the court alone. The legis¬ 
lature may dispense with them, it is true, except where the Constitution 
forbids it, and when done it should be by express provision, not by an 
inference deducible from an act of the legislature; and this remark 
should apply in an especial manner to criminal proceedings. This idea 
gains strength from the provisions of the Constitution, copied from 
Magna Charta, that ‘no freeman shall be put to answer any criminal 
charge, but by presentment, indictment, or impeachment/ and that 1 his 
trial shall be by an impartial jury of the county or district in which the 
crime shall have been committed. , How these provisions have been 
understood in that country, where, though liberty is regarded, yet not 
in a higher degree than with us, will be seen by the rules established 
and adhered to, from antiquity down to the present time, as well in 
times of heat, when the crown seemed to demand vengeance, as when 


1 See 65 , 567. 

2 See Townsend v. Townsend, art. 1, sec. 20; Bell v. Perkins, art. 1, sec. 20; Jones v. Jones, art. 
1, sec. 20. 

For indirect or unimportant reference to this section, see 6, 213; 10 , 272; 11, 354; 22 , 479- 
49 , 264. 

3 See McGinnis v. The State, art. 1, 6ec. 6, p. 7; Fields v. The State, art. 1, sec. 8, p. 29; also, 
80, 133.] 

The offense of mismarking and misbranding domestic animals, which, by the Act of 1741, 
ch. 8, sec. 1, was punishable by a single magistrate on the first conviction, with a pecuniary fine; 
and on the second, with stripes, was abolished by this provision. 23, 1. Williams v. Karnes. 1843. 
Meigs’ Digest, p. 903. 



FINES AND PUNISHMENTS. 


Ill 


no fervor excited prosecutions. Our policy, so far from discarding the 
principle, has embraced it in every case where it has been presented 
and pressed to the court. One reason obviously is, that often the duty 
is limited and expired.” Peck, J., dissented. 8, 164. Cornwell v. The 
State. 1827. 


Art. 1, Sec. 15. That all prisoners shall be bailable by 
sufficient sureties, unless for capital offenses, when the proof 
is evident or the presumption great; and the privilege of the 
writ of habeas corpus shall not be suspended unless when in 
case of rebellion or invasion, the general assembly shall declare 
the public safety requires it 1 . [ Same as Const. 1834, art. 1, sec. 15. In 

Const. 1796, art. 11, sec. 15, after the word “invasion,” follow the words, 
‘‘public safety may require it.”] 


FINES AND PUNISHMENTS. 

Art. 1, Sec. 16. That excessive bail shall not be required, 
nor excessive fines imposed, nor cruel and unusual punishments 
inflicted. 2 [Same as Const. 1834, art. 1, sec. 16; Const. 1796, art. 11, sec. 16.] 

Protection of Homes—Act Imposing Penalties on Persons for Prowling 
and Going in Disguise Does Not Provide Cruel and Unusual Punishment. 
—The defendant was convicted for feloniously prowling and traveling in 
disguise. Freeman, J. : “It is urged that the penalties imposed by this 
3 Act of Legislature, under which defendant stands indicted, are obnoxious 
to the . . . Bill of Rights. . . . We may say, the punishment 

here is neither cruel nor unusual. ‘ Fine and imprisonment in the county 
jail' for the misdemeanor, and for the felony, in the second section, 
1 imprisonment in the penitentiary for a long period, ten to twenty 
years/ but this is neither cruel nor unusual, in the sense of the Consti¬ 
tution. When we look at the evils intended to be checked, and offenses 
forbidden by this act, and turn to the proof in this case, and see the 
character of acts shown to have been committed by some one, we feel 
no hesitancy in saying that whenever parties shall be regularly convicted 
after a fair and impartial trial, in accordance with the forms of law, of 
such offenses, we shall feel no hesitancy in enforcing sternly the penal¬ 
ties provided by the statute. Every home in this State is entitled to be 
protected from intrusion and outrage, whether it be the mansion of the 
wealthy or the hovel of the poorest man in the land. It should be the 
pride and boast of every citizen to make the law so effective in its 
protective power that we may be able to say of our country, as Canning 
said of the peasant homes of England, 1 that the winds and rains may 
enter them, but, without the warrant of the law, the king dare not do it.’ 

1 See McLendon v. The State, art. 6, sec. 12 ; 2 See France v. The State, art. 6, sec. 14; also 

also, 5 , 167; 35 . 413 and 700; Acts of 1887, 81 , 8. 

ch. 157; Shannon’s Sup. to M. A V., p. 270. 3 T. &. S., 4770a: M. & V., 5560. 



112 


TENNESSEE CONSTITUTIONAL LAW. 


We can only attain this desirable end by punishing promptly and severely 
all who shall dare, in violation of law, to intrude upon the sanctities of 
that place in which no forbidden or uninvited foot should ever be per¬ 
mitted to tread.” 50, 164. l Ligan v. The State. 1871. 

When Could Courts Interpose?— McFARLAND, J.: “At what point 
courts could interpose their opinion as to the degree of punishment 
proper to be inflicted, and overrule the action of the legislature in 
upholding this provision of the Constitution, would be a difficult and 
delicate question. Whether the courts have the power to annul the 
acts of the legislature on this ground, or whether the provision is simply 
directed to the legislature to govern them in the passage of laws, and 
to the courts in inflicting punishment in cases where the punishment is 
within the discretion of the courts, we need not now determine. We 
are aware of no construction of this clause by our courts.” 68, 587. 
*The State v. Lassater. 1877. 


1 See same case, ait. 6, sec. 11. 


2 See same case, art. 2, sec. 17. 



RIGHTS AND REMEDIES. 


113 


RIGHTS AND REMEDIES. 


Law in General. 

PAGE. 

Constitution—Not Beginning of Law for 
the State—What it Assumes—How 

Understood.129 

Origin of this Provision—Reasons for it— 

Evils Remedied—Magna Charta.117,120 
Right, Justice, etc.—Legal Construction of. 113 
Statutes, Ancient and Modern—Rules of 


Construction.116 

Relation of State to Citizen. 125 

Obligation of Contracts.124,125 

Co-ordinate Branches of State Government. 117 

Partial Legislation. 117 

Retrospective Laws. 117 


Litigation and Practice. 

Execution—Suspension of by Legislature- 


Fixing Terms of Court—Duty of 

Courts. 113 

Security for Costs, Additional. 116 

Chancery Suits—Act Directing Dismissal 

of, Void. 117 


Litigation and Practice. 

PAGE. 


Taxation of Litigation—History of, in En¬ 
gland and Tennessee—Why These 

Statutes are Constitutional. 120 

Statutes of Limitations—Construction of — 

War. 124 

Suits Against the State. 

This Clause a Dead Letter Unless Proceed¬ 
ing Prescribed by Legislature. 125 

Violation of Law by Public Officer—State 

Not Liable for. 125 

Statute Permitting Suits Against State- 
Repeal of Did Not Impair Contract 
—No Vested Right in Particular 

Remedy, When—Exceptions. 126 

Doctrines Previously Announced Re-af¬ 
firmed . 127 

Courts May Compel State Officers to Per¬ 
form Ministerial Duty. 128 

Counties, Towns, and Taxing Districts— 
When Not Liable for Injuries 

Caused by Defects in Streets. 129 

Acquittal of Defendant —No Appeal by 

State—Reasons—New Trial. 93 


Art. 1, Sec. 17. That all courts shall be open, and every 
man, for an injury done him in his lands, goods, person, or 
reputation, shall have remedy by due course of law, and right 
and justice administered without sale, denial, or delay. Suits 
may be brought against the State in such manner and in such 
courts as the legislature may by law direct 1 . [Same as Const. 1834, 
art. 1, sec. 17. In Const. 1796, art. 11, sec. 17, after the last word “direct,” 
follows, “ Provided, the right of bringing suit be limited to the citizens of 
this State.”] 

Statutes Affecting Litigation and Practice. 

No Suspension of Execution by Legislature—“Right, Justice,” Etc., 
Construed—Fixing Terms of Court—Duty of Courts.— The Act of 1819, ch. 
19, sec. 1, directed that “no execution shall issue upon a judgment until 
two years after its rendition, unless the plaintiff shall endorse upon the 
execution that the sheriff may receive in satisfaction, the notes of cer¬ 
tain banks.” In passing upon the constitutionality of this act, Hay¬ 
wood, J., said: “This clause relates to every possible injury which a 
man may sustain, and which affects him in respect to his real or per¬ 
sonal property, or in respect to his person or reputation, and includes 
the right which is vested in him to demand the execution of a contract; 
which being a personal right to a chattel is, when performance is denied 
or withheld, an injury to him in his goods or chattels. And with 


1 For indirect or unimportant references to this section, see 26 , 115 ; 61 , 471; 87 , 734 ; 93 , 446, 
451; Tenn. Leg. Rep., vol. 2, p. 9. For mention of suits against the State, see Tenn. Leg. Rep , 
vol.’ 1, p. 370; also, 40 , 115, 443. Concerning due course of law, see dictum of Chancellor East in 
61 , 125. 


8 






















114 


TENNESSEE. CONSTITUTIONAL LAW. 


respect to it right and justice is to be done, without sale, denial, or 
delay. In Magna Charta this restriction is upon royal power; in our 
country it is upon legislative and all other power. We must under¬ 
stand the meaning to be that, notwithstanding any act of the legislature 
to the contrary, every man shall have ‘right and justice’ in all cases, 
‘ without sale, denial, or delay.’ 

“In 1796, when the Constitution was formed, it could not have been 
apprehended that any other department of government, except that of 
the legislature, would ever have weight enough to offer any obstruction. 
Experience from 1777 had fully demonstrated the imbecility of every 
executive office in the United States. From the executive no such offer 
could be anticipated. In 2d Institute, 55, my Lord Coke says the king 
is the speaker, and, in contemplation of law, is constantly present in 
all his courts, pronouncing the words of Magna Charta, l Nulli vendemus, 
nulli negabimus, aut differemus justitiam vel rectum .’ In Tennessee 
every legislature is in contemplation of law during the whole session, 
and the judge of every court during the whole term, in the constant 
repetition of the words, ‘right and justice’ must be ‘administered with¬ 
out sale, denial, or delay.’ In 2d Institute, 56, justice is said to be the 
end, and right the mean whereby we may attain the end, and that is the 
law. What that mean consists in is more specially explained in Sulli¬ 
van, 523, where it is stated to be original and judicial process. Original 
process, he says, must issue without price except that which the law 
fixes, and without denial, though the defendant be a favorite of the king 
or government who interferes in his behalf, and must be proceeded on 
by the judges, after suit instituted upon it, without delay, themselves 
or by order of the king, or, as we say, act of the legislature. And the 
judges, where the causes depend, must issue the proper judicial process, 
without fee or reward, except that fixed by law. In other words, where 
judgment is rendered, the judges shall cause execution to issue, not¬ 
withstanding any order or Act of Assembly or other pretended authority 
whatsoever. This is the long-fixed, well-known meaning and legal con¬ 
struction of the words right and justice, without sale, denial, or delay. 
They clearly comprehend the case of executions suspended by Act of 
the Legislature in every instance where justice requires that it should 
immediately issue; as it manifestly does where the law, operating upon 
the contract when first made, held out to the creditor the promise of 
immediate execution after judgment. . . . Suspension of execution 

as directed by the acts now under consideration is forbidden 
by the declaration that justice and right shall be done without delay in 
all cases, the process of execution being one sense of the term right, 
which is not to be delayed. 

“We are, therefore, bound to say that these acts are repugnant to 
the Constitution and void, so far as relates to the suspension of execu- 


RIGHTS AND REMEDIES. 


115 


tiou; and that execution ought to issue immediately without any such 
indorsement as the act requires. The judicial tribunals of the country 
must refuse sanction to acts which are to be executed through their 
agency; such as an act of suspension of execution is, which can not 
take place without the assent of tbe court. There are some violations 
which need not their instrumentality, and of course can not meet their 
rejection, and which alone the great body of the people must correct. 
An occlusion of the courts of justice would be one of them. The courts 
can not sit but on the days appointed by the legislature; and in that 
and other instances the court having no agency, would have no respon¬ 
sibility. Wherever their co-operation is unconstitutionally required, it 
is the most sacred of all their duties to withhold it, and whenever they 
are found to want firmness to do so, the Constitution and public freedom 
die together. 

“And here it is convenient to obviate an argument of frequent recur¬ 
rence. The assembly, it is said, have a right to suspend execution, 
because they may place the terms of the court at such a distance from 
each other as to make it impossible for a creditor to entitle himself to 
execution in less than two, three, or more years, at the pleasure of the 
legislature. The assembly has power thus to fix the terms of the courts, 
and a suspension of execution would be one of the consequences. The 
power to fix the terms, however, was not granted with a view to such 
consequence, but to the more easy and convenient administration of 
justice, consistently with the spirit of the Constitution, displayed in the 
section which requires that the courts shall be always open for the 
redress of injuries. To fix the terms at a remote distance from each 
other for the purpose of producing an effect adverse to the spirit of the 
Constitution would be to use the power of the legislature for purposes 
not intended in the grant of it to them. It would be an abuse of 
power, as much so as the suspension of the courts themselves; and 
certainly the legitimacy of an end produced can not be established by 
deducing it from an abuse of power; an abuse so alarming and so odious 
in its exercise that it never has been resorted to, and perhaps never 
will be, by the legislature, unless when the calamity to be evaded shall, 
in the opinion and by the consent of all mankind, be more disastrous 
aud afflicting than the means adopted for its prevention. The indignant 
disapprobation of the people is a corrective so powerful that it need not 
be aided by any auxiliary power in any co-ordinate branch of the gov¬ 
ernment, but may be safely left, as the people have left it, to its own 
inherent energies. Whenever the people shall be ready to approve of 
such a measure, the adoption of it may be safely committed to the 
uncontrolled discretion of the legislature. The power.of the legislature 
will then fairly flow in the channels which the contested argument opens 
for them, and not as at present, through others which the argument 


116 


TENNESSEE CONSTITUTIONAL LAW. 


does not pretend is open to them. The contested argument is unsound 
unless an illegitimate end, produced by a misapplication of power, can 
sanctify the like end produced by a direct infraction of the restriction 
imposed upon that power.” 7, 14. 1 Townsend v. Townsend et al. 1821. 

Additional Security for Costs — Statutes—Ancient and Modern Rules 
of Construction. — Whyte, J.: “The question intended by the counsel to 
be submitted to the court upon record is, whether, when a plaintiff has 
once given bond with sufficient security for the prosecution of his suit 
at the commencement thereof, pursuant to the Act of 1787, ch. 19, he 
can afterwards, upon the insolvency of that security, his removal out of 
the State, or the loss of the prosecution bond, or upon the failure of the 
security by any other means, not caused by the default of the plaintiff 
during the pendency of the suit, upon the happening of the contingency 
of failure, etc., be lawfully ruled by the court to give new and other 
security. . . . 

“The true construction of the act must be derived from its words 
and spirit. The words of the act give no such power. A particular 
case of grievance and inconvenience in conducting law proceedings is 
stated by the preamble, for which the enacting clause applies the 
remedy; not in general terms laying down the principle guiding the 
relief, and leaving the case as they may or may not come within the 
purview of the act, but a specific remedy is given, single, certain, aud 
definite in its nature, admitting of no latitude of construction in making 
the application, and seemingly incapable of being misunderstood. Such 
is the letter of the act; and by what rule of construction can it be 
extended beyond the specific remedy, aud be said that its spirit is not 
expressed by the letter? Statutes are framed in modern times very 
differently from what they anciently were; they are now considered as 
plainly expressive of the whole will of the legislature ou the subject, 
and what is not stated in the statute is not intended by the law-makers. 
In the present case, the act introducing an alteration in the common 
law must be construed as prescribing the extent of the alteration; and 
the legislature, having the whole matter before them, have said, ‘Thus 
far we will go, and no farther.’ After the provision of this act has been 
complied with by the plaintiff in giving a prosecution bond with security 
before the issuing of the writ, it is wholly gratuitous to say that the 
courts have the power to add other provisions to it, and make other 
and further alterations in the common law. 

“ The assumption of such a power by the courts, as is contended for 
by the counsel of the defendant in error, is not only unwarranted by 
the rules laid down in the books for the construction of statutes, but is 
repugnant to the spirit of the common law, Magna Charta, and our own 


1 See same case. art. 1, sec. 8, p. 45; art. 1, sec. 20. 



RIGHTS AND REMEDIES. 


117 


Constitution. . . . Can it be said in these causes, or even in any 

case, that dismissing a plaintiff’s cause from court upon the casualty of 
the failure of the security given pursuant to the ’Act of 1787, ch. 19, 
because he is unable to give security a second time for costs, that he 
enjoys the protection and benefits secured to him by the Constitution? 
. . . It is believed it can not be so said.” 8, 243. Jones v. Kearns. 

1827. 

Origin of This Provision—Reasons for It—Not a Collection of Un¬ 
meaning Epithets — Co-ordinate Branches of State Government—Partial 
Legislation—Retrospective Laws—Act Directing Certain Suits in Chan¬ 
cery to be Dismissed, Void.— Certain slaves having been emancipated by 
the will of their master, in July, 1827, Dabbs, administrator, with the 
will annexed, refused to file a petition in the County court to procure 
their emancipation, upon the ground that he was unwilling to sign the 
bonds required by law. The legislature, in 1829, passed an act allowing 
slaves thus emancipated to file a bill iu equity, to obtain the assent of 
the State, where the executor refused to file a petition in the County 
court to procure such assent under the previously existing laws; a bill 
was filed accordingly, and the cause prepared for a hearing, when the 
legislature, in 1831, passed another act declaring that the Act of 1829 
should not be construed so as to extend to any cause existing before its 
passage, and that in all such cases where bills were pending under the 
Act of 1829, the same should be stricken from the docket. After the 
passage of the Act of 1831, counsel for Fisher moved the court to strike 
the cause from the docket, pursuant to its provisions. This, the chan¬ 
cellor, Reese, refused to do. The causes were afterward tried by 
Chancellor Cook, who refused to emancipate any of the slaves except 
one. The bill was therefore dismissed as to the residue, from which 
decree an appeal was had to the Supreme court. All of the judges con¬ 
curred in the opinion of Chancellor Reese, that the Act of 1831 was 
unconstitutional, and made his opinion a part of theirs, Judge Catron 
speaking for the court. Chancellor Reese, iu deciding the case, said: 

“It is for the legislature to pass the law, and for the court to 
expound it. They did pass the Law of 1829, and the court here present 
is of opinion that a proper construction of that act, as applied to the 
facts of this case, gives to the court cognizance of the cause. They 
took cognizance accordingly, and now we are informed by the Act of 
1831 that the former act ought not to be so construed, aud should be 
construed as in nowise to apply to a case like this. I need not argue to 
show how little authoritative a conclusion a legislative exposition of a 
former act should be considered. The counsel for the motion are under- 


»Act of 1787. ch. 19, sec. 1; H. & C.. vol. 1, p. 271; Code 1858, 3187; T. & S., 3187: M. & V., 3907. 
This decision caused the passage of the Act of 1829, ch. 33, sec. 2. by which additional security 
may be required. See H. & C., vol. 1, p. 304: Code 1858, 3191; T. & S., 3191; M. V., 3911. 



118 


TENNESSEE CONSTITUTIONAL LAW. 


stood to concede that legislative expositions are not to be relied on, 
and that the exposition in question is not well founded. Here, then, is 
a case where a right deemed valuable, and a proper subject for litiga¬ 
tion—the right to freedom under a will—is brought into this court in 
pursuance of the law, and the matter proper for the investigation of 
this court is pending; the facts and circumstances which fix the rights 
of the parties and give the jurisdiction of the court are past, or already 
exist, when a simple legislative mandate comes to us and says such a 
cause shall not be tried — shall be stricken from the docket. This is 
the whole of the matter; for, if the legislative exposition of the Act of 
1829 goes for nothing, there is nothing left but the simple, naked, direct 
mandate of the legislature to strike the cause from the docket, for the 
balance of the law is a mere direction to the clerk. Shall this court, 
can this court, obey the mandate? If it may in this cause, it may in 
any; it may in all. Shall the rights of all the parties in this cause to 
that relief and to that remedy, by due course of law, which their case 
calls for be disregarded, and this court be closed against them? For 
the efficacy of the Act of 1831, and the duty of this court with regard 
to it, can not depend upon the fact that a motion has been made to give 
it effect. If that motion could succeed, the duty of the court would 
have been the same if all the parties had been not only willing but 
anxious to proceed in this court. . . . 

“This declaration, copied from the great charter, is not a collection 
of unmeaning epithets. In England, the reason of riveting this barrier 
around the rights of the subject was well understood. Their sovereign 
was wont to interfere in the administration of justice; ‘a remedy by due 
course of law’ was often refused, under the mandate of men in power, 
and the injured man denied justice; they were ordered sometimes not 
to proceed with particular causes, and justice was delayed; and the 
obtainment of their rights was often burdened with improper condi¬ 
tions and sacrifices, and justice was sold. So anxious were they to stop 
this enormous evil that a part of the official oath of a judge was that 
he would proceed to do right and justice, notwithstanding any letter or 
order to him to the contrary. This clause of Magna Charta, why is it 
inserted in our Bill of Rights? Was it from apprehensions of our execu¬ 
tive? We had left him no power. Whatever power is considered as 
properly belonging to the executive department elsewhere is, by our 
institutions, conferred upon the legislature. It is the more important, 
therefore, and so the framers of our Constitution decreed that the judi- 
* cial department should be independent and co-ordinate, and that the 
legislature should have no judicial power. Danger might justly be 
apprehended from this quarter. ‘The judicial power (the whole of it) 
shall be vested in such superior and inferior courts of law and equity/ 
etc. If the legislature, possessing a large share of executive power, 


RIGHTS AND REMEDIES. 


119 


be permitted to exercise judicial power also, or control the action of 
the judges within their peculiar sphere, the liberty of the citizens, under 
the government of good legislators, would be in imminent peril, and 
under bad ones would be entirely destroyed. 

“The duties and powers growing out of the relations between the 
legislature and the judicial department, and the lines of demarcation 
between them, have been the subject of earnest and elaborate discussion 
in the courts of the several States, and particularly those of the United 
States; and in the cases of Dartmouth College, of Fletcher and Peck, 
and of Green and Biddle, and of many others which need not be referred 
to, the principles applicable to questions of this sort are well settled, 
and the only difficulty is to apply them to the facts of particular cases. 
A distinction between the right and the remedy is made and exists. 
But where the remedy has attached itself to the right, and is being 
prosecuted by ‘due course of law/ to separate between them, and take 
away the remedy, is to do violence to the right, and comes within the 
reason of that provision of our Constitution which prohibits retro¬ 
spective, or, in other words, retroactive, laws from being passed, or laws 
impairing the obligation of contracts. 

“ By the Act of 1829, all slaves in whose favor there is a devise of 
liberty, and where the representative of the testator refused to apply to 
the County court, they may file a bill, by their next friend, in this court. 
The Act of 1831 attempts to take away this right from a portion of 
them, and from that portion of them where the right and remedy had 
attached by the actual pendency of a suit in ‘a due course of law.’ Is 
not this partial and unequal legislation? It is believed it is. It would 
give me much more pleasure, if duty would permit, to conform to the 
will of the legislature. This feeling is inspired not only by respect and 
courtesy, but, perhaps, also by a lively sense of the feeble and unsus¬ 
tained character of judicial power, which rests only upon the moral 
feelings, upon the reason of the community. Au improper yielding to 
legislative enactments is a danger more to be apprehended from the 
judicial department than rash or uncalled for opposition. The history 
of every age and of every country has, in every page of it, shown this 
to be the case. The independence of the judiciary ought to be anxiously 
preserved unimpaired; not on account of the individuals who may 
happen to be judges —they are nothing—but on account of the security 
of life, liberty, and property to the citizen.” 14, 120. 1 Fisher’s Negroes 
v. Dabbs el al. 1834. 


1 See same case, art. 1, sec. 2, p. 2. 



120 


TENNESSEE CONSTITUTIONAL LAW. 

\ 

More About the Origin of This Provision and the Bad Practices of the 
Monarchs Before Magna Charta Was Granted—Taxation of Litigation in 
England and Tennessee — Complete History of Our Statutes from 1796 
to 1871—Constitutional Because Enforced Against Party Who, in the 
Opinion of the Court, Has Not Been Injured in His Lands, Etc. — Upon 
a motion to retax the costs in this case, plaintiffs moved to strike out 
the State tax of five dollars, and the county tax of a like amount. The 
motion was disallowed, and the plaintiffs appealed in error. 

Sneed, J.: 14 It is insisted that the tax in question is but the imposi¬ 
tion of a burthen upon the right of the citizen to go into the courts to 
have his wrongs redressed and his rights vindicated, and that the statute 
which authorized the tax is an infraction of” (this section)....“ This 
section of our Bill of Rights is in substance identical with the great 
principle of English liberty granted by Magna Charta, and was borrowed 
from the twenty-ninth chapter of that celebrated instrument, which, in 
its original English version, was in the words following: ‘No person shall 
be taken or imprisoned or disseized from his freehold, or liberties or 
immunities, nor outlawed, nor exiled, nor in any manner destroyed, nor 
will we come upon him nor send against him except by legal judgment 
of his peers, or the law of the land. We will sell or deny justice to 
none, nor put off right or justice.’ By secs. 8 and 17 of our Bill of 
Rights the great guarantees of popular liberty announced in this chapter 
of Magna Charta were recognized and adopted as a part of the funda¬ 
mental law of this State—first by the Constitution of 1796, again by that 
of 1834, and again by that of 1870. By the fourth section of the tenth 
article of the Constitution of 1796 it is provided 1 ... A provision 
of equal import is contained in each of our subsequent Constitutions of 
1834 and 1870.” 

Judge Sneed then quotes at length from the various statutes impos¬ 
ing a tax on litigation, viz.: Act of 1799, ch. 30, sec. 1, H. & C., vol. 1, 
p. 349 5 Act of 1817, ch. 138, H. & C., vol. 1, p. 349 ; Act of 1827, ch. 49, 
H. & C., vol. 1, p. 362, and says: “These several statutes authorizing a 
tax upon judicial proceedings were in full force and operation when the 
Convention of 1834 met and adopted the Constitution of that year, 
wherein it is declared that ‘ all laws and ordinances now in force and 
use in this State, not inconsistent with this Constitution, shall continue 
in force and use until they shall expire, be altered or repealed by the 
legislature.’ Const. 1834, art. 11, sec. 1 . The legislature which assembled 
next after the adoption of the Constitution of 1834 recognized and 
adopted these laws by re-enacting them, with certain changes, as will be 
seen by reference to the Acts of 1835, ch. 13, sec. 4; C. & N. Rev., 604; 
Code, 1858, 551, 553; and Acts of 1865, ch. 8 , which last act fixed the 
tax at five dollars. 


1 See art. 11, sec. 16. 



RIGHTS AND REMEDIES. 


121 


“Such was the state of the law upon this subject when the Conven¬ 
tion met in 1870 to reorganize the State government, and when the Con¬ 
stitution of that year was adopted and proclaimed. 

“ By the first section of the eleventh article it is ordained, etc. . . . 
We have thus been careful to show the state of the law upon this subject 
from the foundation of the government to the present hour, and to trace 
the changes of the organic law, that it may be seen that on at least two 
memorable occasions in the history of this Commonwealth the people 
have met in convention, having similar laws upon the statute book, 
some of which are as old as the State itself, and have reorganized their 
government without any ordinance or provision which in express terms 
abrogates or reprobates this kind of legislation. While, therefore, we 
can not assume that the provisions of the two Constitutions of 1834 and 
1870, adopting and approving the laws then in force, so far as they are 
not inconsistent with those instruments, give the constitutional sanction 
to these statutes; yet we must hold these facts to be a persuasive argu¬ 
ment which tends to invite, if not to justify, such an assumption. 

“ We have seen that the laws authorizing a tax upon law suits, to be 
paid by the unsuccessful party, had their origin soon after the organi¬ 
zation of the State government under the Constitution of 1790, and 
having existed ever since, they have passed the ordeal of two Constitu¬ 
tions without express repudiation or disapproval. And it would seem 
remarkable that a law enforced almost e?ery day in some part of the 
State for more than seventy years, and which has brought its thousands 
and hundreds of thousands of revenue into the State and county treas¬ 
uries, should have been suffered so long, sub silentio , to oppress the 
citizens, if it be, indeed, repugnant to the Constitution. And it would 
seem yet more strange that in the two conventions which sat to delibe¬ 
rate upon this important question, with these laws before them, the sub¬ 
ject of exemption should have engaged the attention of both, and yet 
that the whole instrument should be silent upon this subject. 1 . . . 

If it be true, then, that the laws imposing a tax upon law suits are incom¬ 
patible with the seventeenth section of the Bill of Rights, there must be 
some marvelous obscurity in that section, since it has escaped the 
scrutiny of two conventions, and the vigilance of two generations not 
distinguished for their indifference to their constitutional rights. We 
are free to confess that the able and ingenious arguments submitted at 
the bar upon this question, on behalf of the plaintiffs, had for a time 
generated doubts and difficulties to which we were strangers before; 
but we imagine that these doubts will disappear as this subject is more 
thoroughly investigated. If we are correct in assuming that the power 
of taxation in a government is unlimited, except by the organic law, 
then the right of entering the courts for the purpose of litigation, 


1 See art. 2, secs. 28 and 29. 



122 


TENNESSEE CONSTITUTIONAL LAW. 


whether considered as a species of property, a franchise, or a privilege, 
is one that can not escape this all-pervading power. Whether a law is 
void for repugnancy to the Constitution, is at all times a question of 
delicacy, which ought seldom, if ever, to be decided in the affirmative 
in a doubtful case. The opposition between the Constitution and the 
law should be such that the judge feels a clear and strong conviction of 
their incompatibility with each other. Potter’s Dwarr., 65; 6 Cranch, 128. 

“The right to litigate in the courts is a common right, and therefore 
it can not be said to be taxable as a privilege. . . . But the right to 

litigate one’s rights in the courts is a species of property—an incorporeal 
property—and all property is taxable in this State. . . . The power 

of taxing the people and their property is essential to the very existence 
of government, and may be legitimately exercised on the objects to 
which it is applicable, to the utmost extent to which the government 
may choose to carry it. The only security against the abuse of this 
power is found in the structure of the government itself. . . . The 

promise is not to the man who deals unjustly, who builds his house by 
unrighteousness, and who defrauds and wrongs his neighbor, but to him 
who has been injured in his lands, goods, or reputation. The tax is 
imposed on the ‘unsuccessful party,’ who, in the opinion of the tribunal 
adjudicating the case, is in the wrong—who has not been injured in his 
‘lands, goods, or reputation,’ but who has wronged his adversary—and it 
becomes, therefore, in this view, not a tax upon the judicial remedy, but a 
tax upon unrighteous litigation. If, indeed, the tax were upon the plaintiff 
as a condition precedent to his litigating his right in court, yet no tax 
could amount to an inhibition upon him, as we have our actions in forma 
pauperis, with one or two exceptions, as a remedy in all conceivable cases. 

. . . It is in our opinion clear that the law may impose terms upon 

the right of litigation, provided the same be uniform and in the shape of 
a public tax for the general benefit without a violation of the letter or 
spirit of the seventeenth section referred to. 

“It is said by an ancient law-writer of England that so much of the 
twenty-ninth chapter of Magna Charta, as makes King John assert that 
he will sell or deny justice to none, nor put off right or justice, was 
extorted from the monarch because it was usual to pay fines anciently 
for delaying law proceedings. This sometimes was extended to the 
defendant’s life. Sometimes fines were paid to expedite process and to 
obtain right. And in some cases the parties litigant offered part of 
what they were to recover to the crown. Many instances of fines are 
mentioned for the king’s favor, and there is a particular instance of the 
Dean of London paying twenty marks as a fine to the king, that he 
might assist him against the bishop in a law suit. Observe Magna 
Charta, 21. The courts of law were not in those times open courts, says 
the same author, as they are now understood to be. ‘An open court at 
present (1766) is generally so crowded with spectators that no one who 


RIGHTS ANI) REMEDIES. 


123 


hath any real business to do can have access; or, if he procure access, 
he is not so much at his ease as those whose interests are depending 
have a reasonable right to insist upon. The old law required that the 
plaintiff or defendant should pay nothing, but that the idle part of 
the audience should pay one penny each for admittance, which may 
be nearly equal to a shilling at present, when the servants of judges at 
the old Bailey, and the officers of the courts in Westminster hall, have 
upon certain occasions taken not only a penny from the spectators, but 
even insisted on gold. Are they not within the letter and spirit of the 
law?’ asks this quaint old expounder, ‘and is it not incumbent on the 
judges to put it in execution agreeable to what is enjoined V Id. 102. 
‘These little circumstances/ says he, ‘show strongly that to the manners 
of the times, we are undoubtedly indebted for that great principle of 
Magna Charta, which forbids the sale, denial or delay of justice, and not 
the just and legitimate exercise of the taxing power, which is for the 
benefit of all, and not for the exclusive behoof of the servants of judges 
at the old Bailey or the officers of the court in Westminster hall.’ The 
object and purview of this celebrated chapter of Magna Charta are 
therefore best interpreted by the ‘manners of the times/ which led the 
barons to demand it. Thus we are told by the historian that the 
ancient kings of England put themselves entirely on the footing of the 
barbarous eastern princes, whom no man must approach without a 
present; who sell all their good offices, and who intrude themselves 
into every business that they may have a pretext for extorting money. 
Even justice was avowedly bought and sold; the king’s court itself, 
though the supreme judicature of the kingdom, was open to none that 
brought not presents to the king; the bribes given for the expediture, 
delay, suspension, and doubtless for the perversion of justice, were 
entered in the public registers of the royal revenue, and remain as 
monuments of the perpetual iniquity and tyrauuy of the times. 

“The barons of the exchequer, for instance, the first nobility of the 
kingdom, were not ashamed to insert as an article in their records that 
‘the county of Norfolk paid a sum that they might be fairly dealt with; 
the borough of Yarmouth, that the king’s charter which they have for 
their liberties, might not be violated; Richard, son of Gilbert, for the 
king’s helping him to recover his debt from the Jews; another that he 
might be permitted to make his defense in case he were accused of a 
certain homicide; another still, for free law if accused of wounding 
another; aud another for having an inquest to find whether certain 
parties were accused of murder out of ill will or for just cause.’ These 
are a few of a great number of like instances preserved in the ancient 
rolls of the exchequer. 1 Hume Hist. Eng., 504. These are the sales, 
delays and denials of justice, which influenced the barons, in the words 
of the historian, ‘to take an oath before the high altar to adhere to each 


124 


TENNESSEE CONSTITUTIONAL LAW. 


other, to insist on their demands and to make endless war on the king 
until he should submit to grant them. 1 Id ., 462. 

“We apprehend that in the three conventions of Tennessee the idea 
of taxation was never for a moment considered in connection with the 
seventeenth section of the Bill of Rights. As it was official plunder, and 
not taxation, which gave it birth in Magna Charta, so it was ordained as 
a part of our own organic law, in the light of history, not to circum¬ 
scribe this high attribute of sovereignty, but to elevate the standard of 
judicial morals, to purify the fountains of justice and warrant forever the 
right of the injured citizen to enter the courts and demand his rights 
upon such terms, applicable to all alike, as the law may prescribe for 
the general good. Let the judgment be affirmed.” 54, 35. Harrison , 
Pepper & Co. v. Willis et al. 1871. 

Statutes of Limitations—Construction of—War — Obligation of Con¬ 
tracts— M. & v., 3117, 3118. —Freeman, J.: “We hold, that the con¬ 
struction of these statutes is, that they are only applicable to a normal 
state of things, when the machinery of government is regularly organ¬ 
ized, and remedies are furnished' to parties for the enforcement of 
rights through courts of justice. . . . This clause of the Constitu¬ 

tion indicates distinctly what was the normal state, or established 
condition of things, under which these statutes were enacted and 
intended to operate. This instrument is the basis of the government; 
is the Constitution, under which the legislature existed which passed 
these laws. They were passed while this clause of the Constitution was 
a living, practical, operative provision, and in view of the fact that this 
state of things, ordained and established by the supreme law of the 
State, was not only in actual operation, and the courts open, but that 
they were expected to be at all times open, and every man to be 
furnished, in fact, with a remedy by due course of law for the enforce¬ 
ment of all legal rights guaranteed to him. In view of this clause of 
the Constitution of our State, and the clause of the Constitution of the 
United States, sec. 10, art. 1, prohibiting any State from ‘passing any 
law impairing the obligation of contracts/ we think that if a law had 
been passed by the legislature, enacting in so many words, that a man’s 
right to recover his debt due on a contract, should be barred in six 
years, or any other period, notwithstanding there were no courts in 
operation or open in which he could bring his suit, such law would have 
been declared void, as violative of the provision that the courts should 
be open, and every man entitled to his ‘remedy by due course of law’ 
for injuries done him in his lands, goods, person, or reputation. It would 
also have been held void as impairing the obligation of contracts—their 
legal obligation—which must necessarily consist in an efficient remedy 
for their enforcement.” 1 54 , 339. Harrison v. Henderson et al. 1872. 


1 Caae criticised, Girdner v. Stephens, Schedule, sec. 4. 



RIGHTS AND REMEDIES. 


125 


Suits Against the State. 

This Provision a Dead Letter Unless Proceeding Pointed Out by the 
Legislature—Obligation of Contract—Art. 1, Sec. 8. — OVERTON, J., held: 

“ On general principles, the idea of an individual citizen compelling the 
sovereign to do an act is repugnant to every idea of sovereignty; aud 
the provision of the Constitution that suits may be brought against the 
State in such manner and in such courts as the legislature may by law 
direct, is a dead letter until some mode of proceeding shall be pointed 
out by the legislature. Where, therefore, the legislature passed an act 
prohibiting the registers from issuing a grant to a certain person, or his 
assigns, on a certain certificate, and an application was made by an 
assignee for a mandamus to compel the register to issue the grant, it was 
held that the mandamus could not be granted, although the act was 
unconstitutional. But it was held, also, that if the State issue a grant 
to auy other person the court of equity would, upon being satisfied of 
the right of the person claiming under the certificate, divest the title out 
of the grantee and vest it in such person.” 3, 214. Williams v. Regis¬ 
ter of West Tennessee. 1812. 

Violation of Law by Public Officer—State Not Liable For—Relation 
of State to Citizen.— Andrews, J.: “The State may contract with one of 
its citizens, and a liability to the citizen may arise by the terms of the 
contract. But the relation of the State to the citizen is not in such sort 
the relation of an agent to his principal, that for any failure properly to 
perform the functions of government the State will be liable in damages 
to the citizen. 

“The Constitution of this State provides that writs may be brought 
■against the State in such manner aud in such courts as the legislature 
may by law direct. And section *2807 of the Code, in force at the time 
these bills were filed, provides that ‘actions may be instituted against 
the State under the same rules and regulations that govern actions 
between private persons/ The constitutional and statutory provisions 
provide a remedy for any existing cause of action, but do not change 
the relation between the State and the citizen so as to create any liability 
or responsibility on the part of the State. 

“ The relation of the State to the citizen is not one of contract, which 
implies an undertaking upon good consideration on the part of the State, 
that all the functions of government shall be duly performed, or that it 
will employ none but capable and faithful agents. If an officer or agent 
of the State, in violation of law, commits an act to the injury of the 
citizen, it is an act beyond the scope of his agency, unauthorized by his 
principal, and the State is not liable therefor to the party injured.” 47, 
317. Clark et al. v. The State. 1809. 


1 Repealed. 



126 


TENNESSEE CONSTITUTIONAL LAW. 


No Vested Rig-lit in a Particular Remedy in Existence at Time of 
Contract—Exceptions Where Remedy is Part of Right Itself—Statute 
Permitting Suits Against the State — Repeal of, No Impairment of 
Obligation of Contract.— Nicholson, J.: “It is uniformly held that a 
sovereign State is not liable to be sued in its own courts without its own 
consent. The general principle is that when States enter into contracts, 
the liabilities so incurred can only be enforced by petition or memorial 
to the legislative department, whose legitimate business is to provide 
the means and to make the necessary appropriations to meet the liabili¬ 
ties of the State. This remedy is secured by a constitutional guaranty 
in our State, and during much the greater portion of our existence as a 
State it has been the only remedy for enforcing its liabilities. In refer¬ 
ence to liabilities incurred, as between individuals, or between individuals 
and corporations, all of our Constitutions have provided for their redress 
or enforcement through the agency of the judicial department. And in 
each of our three Constitutions this distinction between the remedies to 
enforce liabilities or redress grievances, as against individuals or corpo¬ 
rations and the State, has been recognized. ... By this provision 
every man has a right to resort to the courts for the redress of all griev¬ 
ances as against individuals or corporations,- and for this purpose it is 
required that the courts shall be open, but the right to resort to the 
courts to redress grievances as against the State only exist where the 
legislature has exercised its discretion in prescribing the manner and 
the courts in which suits may be brought against the State. The right 
which an individual or a corporation has to enforce a liability as against 
the State, is as much a vested right as that which he has against another 
individual or corporation; but in the latter case the right can be 
enforced only through the courts, whereas, as to the former, the legiti-'- 
mate tribunal for the enforcement of the right is the legislature, unless 
the legislature provides for its enforcement through the courts. After 
the legislature has made such provision, the party having cause of com¬ 
plaint against the State has his rights either through the courts or by 
appeal to the legislature. But while the right to sue is a vested right, 
which cannot be taken away without impairing the obligation'of the 
contract, yet there is no vested right in a particular remedy which may 
be in existence at the time of the contract. This is the general rule, and 
the exceptions are those peculiar cases in which the remedy is part of 
the right itself. . . . When the remedy by suit in court was repealed, 
the remedy by application to the legislature was left in full force. The 
remedy by suit in court was not given to the company in consequence 
of any constitutional injunction upon the legislature to furnish such 
remedy, but purely as a matter of favor to the creditors of the State, 
thus giving them the choice of two remedies, whereas none but the 
remedy by suit was given to other creditors as against other debtors 


RIGHTS AND REMEDIES. 


127 


than the State. During most of the existence of the State the remedy 
by application to the legislature was the only remedy given to the credi¬ 
tors of the State, and we are bound to presume that it had proved sufficient 
and effective during more than fifty years of the history of the State. 
The State was under no obligation to her creditors to furnish them the 
remedy by suit, nor under any to continue that remedy longer than the 
legislature should deem it sound policy to withdraw it, and leave her 
creditors to the remedy by application to the legislature. . . . We 

have been considering the case upon the assumption that the section of 
the Code 1 authorizing suits to be brought against the State constituted a 
contract between the State and the railroad company, and we have 
reached the conclusion that, even upon that assumption, the repeal of 
that section was no such impairment of the obligation of the contract 
as furnished ground of complaint to the company. But it was not nec¬ 
essary to consider the question in that aspect. The section of the Code 
referred to was no contract; it was no more than an act to regulate the 
proceedings and define the jurisdiction of the courts of the State where 
the State is a party defendant.” 62 , 403. The State et al. v. Bank of 
Tennessee et al. 1874. 

Doctrines Announced in Preceding Cases Reaffirmed by State and 
United States Supreme Courts.— NICHOLSON, J.: “It is a legal as well 
as political axiom, that no sovereign government can be sued in its own 
courts, except by its own consent. By our Constitution, 1 suits may be 
brought against the State, in such manner and in such courts, as the 
legislature may*, by law, direct. 1 But this constitutional provision 
remains a dead letter, until some mode of proceeding is pointed out by 
the legislature. Williams v. The Register. At the time the bank charter 
was passed, in 1838, the legislature had pointed out no mode, by which 
the State might be sued in the courts. There was then at that time no 
statute of the State authorizing the enforcement of this contract in the 
courts, and consequently no such statute entering into that contract, 
and constituting part of its obligation. The holders of the notes could 
only rely upon the good faith of the State, through legislative enact¬ 
ments, for the enforcement of the contract. It is clear, therefore, that 
while the Constitution of the United States protected the obligation of 
the contract from impairment by the State, there was no law furnishing 
a remedy for its enforcement, which constituted any part of the obliga¬ 
tion of that contract, and the State was under no obligation to furnish 
any other remedy than that then existing. 

“ It is true, however, that in 1855, the State gave her consent that 
suits might be brought against her as against individuals; and this law 
remained in force until 1865, wheu it was repealed, aud since that time 


* M. A V., 3507. 



128 


TENNESSEE CONSTITUTIONAL LAW. 


no law has been enacted authorizing suits against the State. It was 
during this period that the Act of 1855, carried into the Code, section 
2807, was in force, that the notes of the bank now in controversy, were 
issued; and down to its repeal in 1865, the holders of the notes so 
issued had the right to enforce the contract of guaranty, contained in 
the twelfth section of the bank charter. 

“But the Act of 1865 was an ordinary act of legislation, regulating 
the jurisdiction of the courts of the State, and furnishing a new remedy 
by way of suits against the State. This act contained no stipulations, 
that it might not be afterwards modified or repealed, if in the judgment 
of the legislature, its modification or repeal should be demanded by the 
public interests. Nor could such a contract be implied from the passage 
of the Act of 1855. As held by the Supreme court of the United States, 
in the case of Beers v. The State of Arkansas, 20 How., 530, it was com¬ 
petent for the legislature to repeal the Act of 1855 altogether, and put 
an end to the jurisdiction of our courts in suits against the State; and 
in exercising this power, the State would violate no contract with the 
parties. It would be merely regulating the proceedings in her own 
courts, and limiting or withdrawing the jurisdiction she had before con¬ 
ferred, by the passage of the Act of 1855. . . . 

“But the legislature has not stopped by simply repealing the Act of 
1855 (Code, sec. 2807 *), which authorized suits to be brought against 
the State. In 1873, by chapter 13, it was enacted, that ‘no court in the 
State has, nor shall hereafter have, any power, jurisdiction, or authority 
to entertain any suit against the State, or against any officer of the 
State, acting by authority of the State, with a view to reach the State, 
its treasury, funds or property ,” 1 2 etc. 68, 475. • The State ex rel. 
Bloomstein v. Sneed. 1876. 

Courts Have Jurisdiction to Compel Officers of the State to Perform 
Ministerial Duties. — McFarland, J.: “The Act of 28th of February, 1873, 
declares that no court in this State shall have jurisdiction ‘to entertain 
any suit against the State or against any officer of the State acting by 
authority of the State, with a view to reach the State, its treasury, funds 
or property/ We have decided quite a number of cases since this act 
was passed, awarding the process of mandamus against the comptroller, 
to compel him to issue warrants to parties having claims against the 
State allowed by law. Baxter v. Burch, 12 Heis., 601; Publishing Co. v. 
Burch, lb., 607; Uhl v. Gaines, 4 Lea, 352, besides quite a number of 
unreported cases. The effect of the Act of 1873 seems not to have been 
considered in those cases; but, it would certainly not be construed to 
deprive the court of jurisdiction to compel a ministerial officer to per- 

1 M. & V., 3507. 3 See same case, art. 1, sec. 20. 

2 Affirmed by U. S. Supreme court Nov. 26,1877, Hunt, J., delivering the opinion, which is 

reported in 96 U. S., 69-75. 



RIGHTS AND REMEDIES. 


129 


form a plain ministerial duty; and when the demand of the relator is 
allowed by law, it is the plain ministerial duty of the comptroller to 
issue his warrant, even though in determining this question the court 
may have to declare legislative acts unconstitutional. Otherwise, the 
decision of the comptroller would be final, and the party having a 
demand allowed by law without remedy. Such proceedings, so far from 
being suits against the State, are in fact such in the name of the State 
to compel its officers to perform their duty.” E. H. Ewing, Sp. J., 
dissented. 76, 256. 1 Lynn v. Polk et ah 1881. 

Liability of Counties and Municipal Corporations. 

Taxing District — Failure to Repair Streets — Not Liable for Injuries, 
When—How a Constitution Must Be Understood. — By the Act of 1881, 
ch. 96, the original Taxing District Act, sec. 19 was amended so as to 
read: “That the counties in which taxing districts are situated, and the 
taxing districts themselves, shall not be liable for damages or injuries 
to persons or property by reason of defects in the streets or alleys, or 
other property under the control and within said taxing district,” etc. 
The contention of the plaintiff was that this act was in violation of this 
section of the Constitution. Cooper, J.: “It will be noticed on the face 
of this section of the Constitution that, notwithstanding the generality 
of the language touching a man’s remedy for an ipjury to his person, 
reputation or property, yet there is a class of injuries for which there 
is no remedy unless the legislature shall so direct by law, namely, 
injuries inflicted by the State. Until the legislature chose to legislate 
on the subject there was no redress in the courts. Williams v. The 
Register. And the redress or remedy thus given might be repeated at 
any time. State v. The Bank of Tennessee, 3 Baxt., 395. A Constitu¬ 
tion, moreover, must be understood and construed in the light and by 
the assistance of the common law, and with the fact in view that its 
rules are still left in force. The Constitution is not the beginning of 
law for the State, but it assumes the existence of a well-understood 
system, which is to remain in force and be administered, under such 
limitations and restrictions as that instrument imposes. Cooley Const. 
Lim., 74; People v. Draper, 15 N. Y., 537; Pope v. Phifer, 3 Heis., 682. 
By the common law the citizen had no remedy against a county for an 
injury caused by the neglect of the county to keep the public roads in 
good repair. And such is the state of the law to this day, although the 
county is a municipal corporation. Wood v. Tipton County, 7 Baxt., 112; 
White’s Creek Turnpike Company v. Davidson County, 14 Lea, 73. The 
reason is, that the county, in its municipal capacity, is only an arm or 
instrument of the State to carry out its sovereign prerogative in opening 

1 See same case, art. 1, sec. 20; art. 2, sec. 2. See Act 1873, ch. 3. 


9 



130 


TENNESSEE CONSTITUTIONAL LAW. 


and keeping up public roads, and the legislature may give it only such 
powers as it deems best, and limit its liability accordingly. Originally, 
the State alone could levy taxes for the county. Marr v. Enloe, 1 Yer., 
452. And although the Constitution now authorizes the legislature to 
delegate to counties and incorporated towns the power to tax for county 
or corporation purposes, the legislature may refuse to delegate it, and 
reserve to itself the exclusive right. Luherman v. Taxing District, 2 
Lea, 425. 

“The current of authority, while recognizing the exemption of 
counties from liability for injuries caused by failing to keep the public 
roads in repair, nevertheless holds an incorporated town liable for a 
similar injury occasioned by neglect of its public streets. The reason 
of the distinction is, that municipal corporations of this class, while 
still arms of the State government, are more complete entities, and are 
enjoined and given the power to maintain the streets in a safe condition. 
<But, in addition/ says Mr. Dillon, ‘the duty or burden must appear, 
upon a fair view of the charter or statutes, to be imposed, or rest upon 
the municipal corporation, as such, and not upon it as an agency of the 
State, or upon its officers as independent public officers/ Dillon on Mun. 
Corp., sec. 789. If, in fact, the municipal corporation stands, in relation 
to its streets, in the situation of a county as to its public roads, the 
liability for neglect of duty would be the same. In the case before us, the 
municipality exercises supervision over the paving and repair of streets 
and the construction of bridges, and has power to enter into all necessary 
contracts for work, but ‘subject to the limitations and restrictions 7 of 
the Taxing District Act. Some of these restrictions we have seen, 
under which if, as the declaration alleges, ‘ample taxes for the purpose 7 
have been levied by the legislature and placed in the control of the 
taxing district, there may be no funds on hand to justify any contract. 
The power to tax for any purpose is expressly withheld from the corpo¬ 
ration. It is clothed with less power in the matter of taxation than the 
county. And if a sufferer from a defect in the streets can only look to 
the legislature for redress, a suit against the corporation would be 
unwarranted. The corporation is in reality only an agency of the State 
in the matter of its streets, and an essential element of liability is 
wanting. 77 84,531. 1 Williams v. Taxing District. 1886. 


1 See same case, art. 1, sec. 8, p. 59. 



IMPRISONMENT FOR DEBT. 


131 


IMPRISONMENT FOR DEBT. 

Art. 1, Sec. 18. The legislature shall pass no law authoriz¬ 
ing imprisonment for debt in civil cases . 1 [Const. 1834, art. l. sec. 

18, read: “That the person of a debtor, where there is not strong presump¬ 
tion of fraud, shall not be detained in prison, after delivering up his estate 
for the benefit of his creditor or creditors, in such manner as shall be pre¬ 
scribed by law.” Const. 17%. art. 11, sec. 18, was same, except that the word 
“continued” was used in that instrument in place of “detained.” See 
Woodfln v. Hooper, art. 1, sec. 20, and Acts of 1831 and 1842.] 

Act Requiring Persons Convicted of Misdemeanors to Work Out 
Costs, Etc. —Moseley was convicted of keeping a gaming house, and 
fined fifty dollars and costs. In pronouncing judgment the court directed 
that if the fine and costs be not paid or secured, he be committed to the 
workhouse of Gallatin to work out the same. Garner, Sp. J., held: 
“This provision has no reference to the enforcement of the collection 
of fines , penalties and costs from defendants , who have been convicted of 
misdemeanors in the violation of the statutes of the State, or of the 
ordinances of a municipal corporation. The x Act approved March 23, 
1875, ch. 83, pamphlet acts, p. 117, entitled ‘An Act to require persons 
convicted of misdemeanors to work out the costs of conviction/ enacts, 
etc. . . . Under this act, the judgment pronounced in this case, by 

his honor, the circuit judge, is authorized.” 78,495. Moseley v. The 
Mayor etc . of Gallatin. 1882. 

Compelling Corporations to Cash. Their Own Scrip—Act of 1887, 
Ch. 209, Void. —W. A. Henderson, Sp. J.: “The Act of March 29, 1887, 
enacts that from and after the passage of that act it would be unlawful 
for any person or persons, firms or corporations <?r companies, to refuse 
to cash any checks or scrip of their own that may be presented them 
within thirty days of its date ot issuance, and that any such person who 
should refuse to redeem, in lawful currency, any such checks or scrip 
would be guilty of a misdemeanor, and, upon conviction, should be fined 
not less than ten nor more thau twenty-five dollars for each offense. In 
other words, that when any person who owed a debt which was evi¬ 
denced by check or scrip issued by him, did not cash the same within 
thirty days of its issuance, he would be guilty of a misdemeanor, aud 
fined accordingly, which judgment, of course, under the general law, 
would be liable to be enforced by confinement in the workhouse. The 
question is, whether or not that act is violative of the fundamental law 
of the land. If this statute, and the indictment under it, can be main¬ 
tained, any citizen, corporation, or company drawing a check or giving 
a written order, in good faith, in favor of any person, and failing, for 
any reason, to pay the same, or to redeem it in currency, if presented 
in thirty days, is guilty of a crime for which he may be punished by 


M. & V., 6114. 



132 


TENNESSEE CONSTITUTIONAL LAW. 


imprisonment. . . . The Act of the Legislature in question, while 

not directly authorizing imprisonment for debt, does attempt to create 
a crime for the non-payment of debts evidenced by check, scrip, or 
order, and for such crime provides a penalty, which may or may not be 
followed by imprisonment. In that way and for that reason the act is 
violative of the spirit if not the letter of the constitutional provision 
above cited. It is an indirect imposition of imprisonment for the non¬ 
payment of debt, and is, therefore, clearly within the constitutional 
inhibition.” 92, 82. The State v. Paint Bock Coal etc. Co. 1892. 

Act of 1895, Ch. 67, for the Protection of Innkeepers, Valid.— 
Caldwell, J., held: “A statute is not invalid, as authorizing imprison¬ 
ment for debt, which declares it a misdemeanor to fraudulently obtain 
hotel accommodations, or to fraudulently remove baggage, to defraud 
the proprietor. The imprisonment is inflicted for the debtor’s fraud, 
not for his debt.” 95, 548. 1 The State v. Yardley. 1895. 


LIBEL. 

Art. 1, Sec. 19. That the printing presses shall be free to 
every person to examine the proceedings of the legislature, or 
of any branch or officer of the government; and no law shall 
ever be made to restrain the right thereof. The free communi¬ 
cation of thoughts and opinions is one of the invaluable rights 
of man, and every citizen may freely speak, write and print on 
any subject, being responsible for the abuse of that liberty. But 
in prosecutions for the publication of papers investigating the 
official conduct of officers or men in public capacity, the truth 
thereof may be given in evidence; and in all indictments for 
libel the jury shall have a right to determine the law and the 
facts under the direction of the court, as in other criminal cases. 2 
[Same as Const. 1834, art. 1, sec. 19; Const. 1796, art. 11, sec. 19.] 

Origin and History of This Provision—Jury Judges of the Law Under 
Direction of the Court, But not Otherwise. — FREEMAN, J., quoted the Sec¬ 
tion in full, and said: “ It is one of the things hard to be accounted for, how 
the language we have quoted was ever seen to have made any alteration 
whatever in the recognized traditionary and long-settled rules of the 
common law as to the function and rights of a jury in all criminal cases. 
We need but recur for a moment to the history of the heated contest 
that was waged so fiercely in England, in about the last quarter of the 
last century, down to the year 1792, when what is known as Mr. Fox’s 
Libel Bill was passed by the British Parliament, affirming the right of a 
jury, in all prosecutions for seditious libel, to judge of the law and the 
facts as in other criminal cases, to see beyond question what principle 
this clause in our Bill of Rights was intended to settle by embodying it 
in our organic law. The contest in England had grown up in this wise: 


1 See same case, art. 1, sec. 6, p. 12; art. 2, sec. 17. 

2 See Tenn. Leg. Rep., vol. 3, p. 107, for exhaustive dissenting opinion of Judge Freeman in 
which he contends that this section has been misconstrued. 



LIBEL. 


133 


The judges of her law courts—such as Thurlow, Kenyon, Butler, and 
notably Lord Mansfield—had, in trials of indictment for seditious libels, 
charged to have been maliciously published for the purpose of exciting 
sedition, and tending to disturb the peace and good order of society, 
held that the jury had no right to return a general verdict of guilty or 
not guilty, but could only find the fact of publication and the applica¬ 
tion of the innuendoes to the parties as charged, and the question of 
guilt or innocence of the offense, that is, whether the matter thus pub¬ 
lished was a malicious and seditious libel or not, was a question of law 
solely for the court. This doctrine, which placed free speech and the 
liberty of the press at the mercy of the judges appointed by the crown, 
was contested by Lord Camden, the leading spirit of the time in defense 
of the rights of a free people (at any rate, known to us), the author of 
Junius, who joined in the contest with perhaps equal ability, and ten¬ 
fold more virulence, being unknown. Erskine joined with Camden in 
the contest, and in his speech in defense of the Dean of Asaph vindi¬ 
cated the right of the jury to find a verdict as they might deem proper 
from the evidence, under the instruction of the court, with an ability 
that has never been surpassed, if equaled, at the English bar. Lord 
Camden in his last great speech on the subject, laying down and illustrat¬ 
ing the principle for which he had so long contended, said: ‘The jury 
judge of the essential elements of the crime in cases of murder, not the 
judge; so/ he exclaimed, ‘the jury may judge of the intention on which 
the crime depends in murder, but not upon an indictment for libel/ 
See CampbelFs Lives of Lord Chancellors, vol. 7, p. 44 et seq. (Life of 
Camden), for a review of this contest. See, also, Erskine’s Speech, Selt. 
British EL, 655. 

“In view of this history, and the contest that had been had in 
England over the question, when the Constitution of 1834 was framed, 
when providing for the freedom of the press and freedom of speech, in 
the Bill of Rights was inserted the section quoted, and the principle of 
Mr. Fox’s Libel Bill was embodied—that ‘in all indictments for libel the 
jury shall have the right to determine the law and the facts’—not as 
they may think the law is, but ‘under the direction of the court as in 
other criminal cases;’ in plain words, should determine the law and 
the facts as they did in a trial for murder, or for larceny, or for any 
other crime. How was that? By the immemorial traditions of the 
common law, and the universal customs of the courts administering 
that law, the court instructing the jury as to what the law was, what 
were the legal elements of the offense, and the jury finding the party 
innocent or guilty, as they in their judgment found these elements in 
the act of the party charged; that is, they, under the direction of the 
court, said whether he was legally guilty—tried him by the law of the 
laud, that law given them by the court for their guide—and then, under 


134 


TENNESSEE CONSTITUTIONAL LAW. 


our system, if convicted, the instructions, if erroneous in a matter affect¬ 
ing the rights of the prisoner, could be reviewed, and the case reversed 
and remanded for a new trial, that the law may be correctly given for 
the guidance of the jury, and if convicted at all, be convicted according 
to law. This is all that was intended, and all the language of the 
Constitution, fairly interpreted, means. It was not intended, nor does it 
change the ancient province and rights of a jury in criminal cases, but 
only to give the jury, or rather to secure to the jury, the right to do in 
libel cases precisely what they had always done in other criminal cases, 
to act under the instructions of the court, and judge of the application 
of the law given to them to the facts proven, and declare the result, 
either to be innocence or guilt, as the legal elements defined by the court 
or proven to exist, or the contrary. The opposite theory, as embodied 
in his honor’s charge, subverts the theory of the Constitution, by author¬ 
izing the jury, if they choose, to decide the issue submitted to them, 
not under the direction of the court as to the law, but as they may con¬ 
clude the law to be, which, practically, is to leave them to do as they 
will, guided by no law at all. The Constitution says they shall exercise 
their right, under the direction of the court—in no case independent of 
it, much less contrary to it.” 75, 545. Harris v. The State. 1881. 

Privileged Communications. — COOPER, Sp. J. : “ Whatever rights and 
privileges are reserved and secured to the citizen under this provision 
of the organic law must be sacredly preserved. But it has not been 
insisted directly that the right contended for by the defendants is 
secured to them by our Constitution, but rather by the law of libel, 
correctly understood, expounded and applied. Still, we have set out 
this provision of the Declaration of Rights as a landmark to guide us in 
reaching a just and true view of the subject under consideration. If 
we see that we are infringing upon rights therein reserved, we may well 
pause. On the contrary, if we see that the invaluable privileges there 
guaranteed are not encroached upon, but still remain intact and unim¬ 
paired in their integrity, we may feel, at least, that the freedom of the 
press, and free speech, still exist in their constitutional strength and 
vigor, and that we may have not reached a conclusion subversive of the 
fundamental rights of the citizen. 

“The law of libel, on the subject of privileged communications, is 
involved in considerable uncertainty. There is more of conflict and 
doubt than on many other questions affecting personal rights. It is 
very easy to determine that certain communications are privileged, as 
it is called, but we soon reach a point where doubt and uncertainty 
begin, and here we must proceed with caution and due deliberation, 
lest we declare what is fallacious in principle, and establish precedents 
destructive of individual rights and injurious to the public welfare. In 
this State, we have no decision directly upon the point at issue in the 


LIBEL. 


135 


case before us, and we are left to adopt whatever rule (within the limits 
of the Constitution) that appears to us to be best sustained by reason. 
And especially do we feel at liberty to pursue this course, as we find no 
well-established line of cases settling the law upon this question, but 
rather conflict and discord, in the decisions of other courts.” In this 
case it was held: “Neither the public press nor individuals can discuss 
the conduct and character of officers and candidates for office, without 
incurring liability, civil or criminal, for defamatory utterances published, 
although such publications may be made without malice and upon 
probable cause.” 84, 181. Banner Pub. Co. v. The Slate. 1885. 


136 


TENNESSEE CONSTITUTIONAL LAW. 


RETROSPECTIVE LAWS —LAWS IMPAIRING CONTRACTS. 


Law in General. 

PAGE. 

Statute Could be Retrospective if Not Pro¬ 
hibited by Constitution. 138 

Ex Post Facto Laws.139, 147, 169 

Common Law and this Section—Construc¬ 
tion of Statutes—Rule... 140 

Retrospective Laws—When They May be 

Made—Laws Not Retrospective. 145 

“ Retrospective ” Defined—Followed by Ex¬ 
planatory Words. 147 

Statute—Operation of—When Retrospective 150 

Retrospective Laws, What are Not. 152 

Vested Rights. 150 

Vested Rights—Charters—Legislature May 
Reserve Right to Amend or Repeal. 

See Art. 11, Sec. 8 , Ferguson v. Bank. 
Comity of States—United States Constitu¬ 


tion. 155 

Constitution—Rules of Construction—Vio¬ 
lation Not Presumed. 155 

Statute Must be Reconciled With Constitu¬ 
tion if Possible—Implied Repeal... 158 
United States Constitution—Legal Tender 

Clause—History of. 169 

This Section—Light in Which Made—Bind¬ 
ing Force of Contracts—Remedies.. 173 
Act Authorizing Settlement of State Debt- 


Bonds—Coupon Feature—Power of 
the Legislature to Make Contract 
Which Surrenders Power of Repeal 
—Power of Taxation—Surrender of 
this Power—Right of State to Pre¬ 
serve its Own Existence. 199 

Druggists’ Relief Act of 1887 Considered 
with Reference to this Section. See 
Art. 11, Sec. 8 , Demoville v. Davidson 
County. 

Intermarriage of Races—Act Prohibiting is 
Constitutional—Institution of Mar¬ 
riage-History of. See Art. 11, Sec. 

14, Lonas v. The State. 

Retrospective Laws. 


Past Transactions—Remedies. 

Posterior Legislation Confirming Past 

Transactions. 147 

Adultery Committed Before Passage of Act 

—Ex Post Facto Laws. 139 

Remedy Existing at Time Contract was 

Made—Statutes Affecting. 140 

Accident Previous to Enactment of Law... 140 
Contract Made Before Law Took Effect—In¬ 
terest on Bank Deposits. 140 

Act Changing Rights of Parties Accrued 

when Passed. 143 

Divorce—Existing Suits—Act Not Affecting. 143 


Past Transactions—Remedies. 

PAGE. 

Public Road—Statute Requiring Damages 
to be Paid or Secured Before Road 
is Opened Does Not Apply to Road 
Already Opened. See Art. 1, Sec. 21, 
Wetherspoon v. The State. 

Pending Suits—Remedies Not Before Pos¬ 
sessed—Act Giving—See Art. 2, Sec. 

2. Mabry v. Baxter. 

Convicts’ Good Time Law Does Not Apply 
to Sentences in Force at Passage of 
Act. See Art. 3, Sec. 6 , The State ex 
rel v. McClellan. 

Act Affecting .Rights to Sue and Recover 
Personal Property. See Art. 11, Sec. 

8 , Morgan v. Heed. 

Wills and Devises. 


Deeds—Registration of—Laws Validating- 
Remedy for Existing Right—Legis¬ 
lature May Provide. 143 

Devise of After Acquired Lands. 145 

Judgments. 

Against Surety on Writ of Error. 147 

Execution—Satisfaction of, in Notes of Cer¬ 
tain Banks — Act Directing This, 

Void. 148 

Judgment by Motion Against Sheriff—Pre¬ 
existing Default. 149 

Rights Uuder Decree Not Affected by Sub¬ 
sequent Legislation. 149 

Regulation of Remedy—Act of 1844, Ch. 167. 149 
Revival of Suits in Certain Cases—Act 

Authorizing. 149 


Deeds, Acknowledgments, Etc. 


Registration of Deeds—Law Validating_ 150 

Entries—Act Vacating. 151 

Acknowledgments, Imperfect—Statute May 

Validate. 151 

Probate, Defective—Retrospective Act to 

Cure, Good. 151 


Other Subjects. 


Evidence—Notary Public, Deceased—Book 

of. 152 

Back Assessments of Omitted Property May 

be Made. 154 

Undervaluation —Payment of Tax —Re¬ 
assessment. 154 

Foreign Corporations—Insurance Policies— 

Regulation of Liability. 154 

































RETROSPECTIVE LAWS—LAWS IMPAIRING CONTRACTS. 137 


Laws Impairing Contracts. 

Improvements—Compensation. 

PAGE. 

Ejectment—Legal and Equitable Remedies 

Under Acts of 17% and 1805.. 155 

Ejectment—Grant from State—Compensa¬ 
tion Discussed—Rational Rule of— 

Act of 1813. 158 

Land Held Under Color of Title—When 
Improvements Does Not Exceed 

Rents, etc. 162 

Present Law—Result of Confused Decisions 

—Old Statutes Omitted from Code.. 163 

School Lands and Funds. 

Compact Between State and Federal Gov¬ 
ernment-History of Legislation in 
Tennessee— School Lands — Acts 

Directing Sale of, Void. 164 

Power of Legislature Over—Absolute Under 
Const, of 1834—Compromise of Law¬ 
suit by Legislature—Obligation of 
Contract Not Affected. See Art. 11, 

Sec. 12, Governor v. McEwen. 

Sale of Lands Previously Leased, Void. 168 

School Fund—Act Appropriating, Void_ 168 


Judgments—Judicial Proceedings. 

Judgments Payable in Notes of Certain 
Banks—Execution-Legislature Can 
Not Suspend—May Alter Remedies 

—Ex Post Facto Laws. 169 

Surety for Costs—Discharge —Substituting 

Another—Evidence. 173 

Appearance Bond—Change of Term—Effect 173 
Stay of Execution—Judgments Previously 

Rendered. 173 

Debtors —Act for Relief of—Remedies— 

Power of Legislature to Alter. 176 


Vested Rights—Liabilities—Remedies. 

Deeds of Trust Made Before Passage of Act 


of 1852, Allowing Property to be 

Redeemed. 176 

Suit Brought Against State Under One 
Statute Not Affected by Subsequent 

Statute. 178 

Suit Against State—Statute Permitting— 
Repeal of, No Impairment of Con¬ 
tract. 126 

Laws Exempting Property from Sale. 178 

Legislature May Discontinue Office of Pub¬ 
lic Printer — Repeal as Affecting 

Rights. 179 

Statutes of Limitations Affecting Contract. 124 
Statute Construing Charter of Corporation, 

Void. 179 

Divorce—Right to Property Acquired by 

Marriage. 179 

Imprisonment for Debt—Act of 1831 Abol¬ 
ishing . 180 

Taxes—Payment in Paper Not Legal Ten¬ 
der-Bank of Tennessee. 180 


Laws Impairing Contract s. 

Veated Rights—Liabilities—Remedies. 

PAGE. 

Taxes—Bank of Tennessee — New Issue 

Notes Prohibited. 180 

Bank of Tennessee—Torbett Issue—What 

Statutes Binding During the War.. 181 
Rights of Creditors Acquired Under One 
Act Can Not be Divested by Subse¬ 
quent Act. 181 

Grant of Lottery—Whether a Contract, the 
Obligation of Which May be Im¬ 
paired. See Art. 11, Sec. 5, Bass v. 
Nashville. 

Grant Issued by State—When Title Under, 

Will be Divested. 125 

Homestead—Debtor Acquiring Right of by 
Marriage May Assert it Against 
Antecedent Debts, When. See Art. 

11, Sec. 11, Dyev. Cooke. 

Homestead Law of 1870—Power of Debtor 
to Alien Land Previous to. See Art. 

11, Sec. 11, Kennedy v. Stacey. 

Homestead Provision in Constitution no 
Exemption Against Pre-existing 
Debts. See Art. 11, Sec. 11, Hannum 
v. Mclnturff. 

Private Corporations—General Powers. 


Granting an Incident of Sovereignty — 
Powers — Banking — Common Law 
Right —Act of 1827 —Discounting 
Notes at 7 per cent Not Usury- 
Exclusive Privilege — Law of the 

Land. 182 

Charter of New Corporation—New Charter 
to Old Corporation —Difference— 

Alterations—Acceptance. 184 

Exclusive Privilege a Contract. 185 

Corporations Chartered by Special Act- 
Statutory Regulation — Railway 

Charter—Alteration—Repeal. 185 

All Corporations Subject to General Regu¬ 
lations for Good Government and 

Rights of Individuals. 186 

County Purpose—Railroad is. See Art. 2, 

Sec. 29, L. 6c N. R. R. Co. v. Davidson 
County. 


Exemptions From Taxation. 

Privilege Does Not Include Exemption, 
but is Used in Restrictive Sense. 
See Art. 11, Sec. 8, Wilson v. Gaines. 
Charters with Exemption from Taxation- 
Power of Legislature to Grant. See 
Art. 11, Sec. 8, Railroad v. Hicks. 
Charter by Special Act, n Contract—Impos¬ 


ing Taxes Other than Those Named 
in Charter, Void—Constitution Can 

Not Violate Contract. 186 

Bank—How far Exemption Clause in Char¬ 
ter will Protect it. 189 
































138 


TENNESSEE CONSTITUTIONAL LAW. 


Exemptions from Taxation. 

PAGE. 


Clause Making Certain Taxes Payable in 

Lieu of All Other Taxes . 189 

Taxes Mentioned in Charter—Imposition 

of Others, Void.190 

Special Provisions as to Taxation Inviola¬ 
ble—New Powers. 190 

Bank—What Property Not Exempt from 

Taxation. 190 

Contract Against Taxation Can Not be Im¬ 
plied. 190 

Exemptions Valid Under Constitution of 

1834. 191 

Unconditional Exemption for ninety-nine 

years. 191 


Immunities from Taxation Pass to Pur¬ 
chasers of Railroads, When. See 
Art. 11, Sec. 8, State v. Railroad. 


Municipal Corporations. 

Acts Extending Corporate Limits—Exempt¬ 
ing Lands from Taxation. 192 

Can Not Levy Tax Where State is Estopped. 193 
Suit Against Old May be Renewed Against 

New. 193 


Municipal Corporations. 

PAGE. 

May Forbid Erection of Buildings, When.. 194 
Public Road Through Town—Legislative 

Power Doubted. 194 

Turnpike and Bridge Companies. 

Exemption of Turnpikes—Privilege—Act 
of 1891, Ch. 25. See Art. 2, Sec. 28, 
Turnpike Cases. 

Public Bridge—Subsequent Act Converting 


Into Toll Bridge, Valid. 195 

Shunpike Road Opened by County Court- 

Injunction . 195 

Toll Bridge—Exclusive Privilege for Cer¬ 
tain Distance—New Bridge. 195 

Statute Setting Back Toll Gates, Void. 196 

When Turnpike Charter a Contract with 

State—Police Power. 198 

Indictment Against Company for Not Keep¬ 
ing Road in Repair. 198 

New Roads and Bridges—Impairment of 

Franchise. 198 


Akt. 1, Sec. 20. That no retrospective law, or law impair¬ 
ing the obligation of contracts, shall be made. 1 [ Same as Const. 

1834, art. 1, sec. 20; Const. 1796, art. 11, sec. 20.] 


Retrospective Laws. 1 2 

Power of the Legislature. 

Statute Could be Retrospective Even if Not Prohibited by the Consti¬ 
tution—Legislative Power.— Green, J.: “ Judge Haywood has said that 
‘the sovereign legislative power of Tennessee, like the sovereign power 
of all other States, of whatever character they may be, may do all things, 
not naturally impossible, which it deems promotive of the public welfare, 
except in such instances where, by the fundamental law of the nation, 
written by the mighty hand of the people, it is forbidden. And in any 
instance where legislative power is questioned, it bounds over opposi¬ 
tion, unless a restriction upon that power in the particular instance can 
be clearly pointed out.’ 3 To this proposition, in its full extent, I can not 
give my assent. By the Constitution all the legislative power of the 
people is vested in the general assembly; and it follows that the legis¬ 
lature may do any thing within the legitimate scope of legislation which 
is not forbidden in the Constitution, either in express terms or by impli¬ 
cation. But certain limits to the exercise of legislative power have been 

1 For indirect or unimportant references to this section, see 80, 490; 86, 631; 84, 137. See also 
Shannon’s Sup. to M. & V., p. 292. 

8 For indirect or unimportant mention of this class of laws, see 48, 274; 84, 407; 91, 406. For 
construction of sec. 3485, Arkansas Code, see 79, 498. 

3 Tipton v. Harris, art. 1, sec. 8, p. 28. 





















RETROSPECTIVE LAWS. 


139 


recognized from the earliest times. It is a principle of the English com¬ 
mon law, as old as the law itself, that a statute, even of the omnipotent 
Parliament of Great Britain, is not to have a retrospective effect. Why 
was it so considered by the English courts? They had no written Con¬ 
stitution with express restrictions upon the legislative power. It was 
so considered because there are eternal principles of justice which no 
government has a right to disregard. It does not follow, therefore, 
because there may be no restriction in the Constitution prohibiting a 
particular act of the legislature, that such act is therefore constitutional. 
Some acts, although not expressly forbidden, may be against the plain 
and obvious dictates of reason. The common law, says Lord Coke (8 Co., 
118a), adjudgeth a statute so far void.” 10, 603. 'Bank of the State v. 
Cooper et al. 1831. 

Statutes Changing Remedies , etc., Affecting Past Transactions. 

Ex Post Facto Laws—Adultery Committed Before Passage of Act — 
This Section Construed. — In this case the court decided that “The 2 Act 
of 1799, ch. 19, which declared adultery to be a cause of divorce, and 
authorized the courts to grant divorces for adultery committed before, 
as well as after its passage, was not a retrospective law within the 
meaning of the constitutional prohibition of such laws.” Overton, J.: 
“Adultery, by the law of nature, is an offense. It was so before the 
passage of this act, and an evil in any possible view of the subject. 
The act, by affording relief for a matter which was criminal in itself, 
must be considered as so far remedial, and not ex post facto , as 
has been contended. Blackstone and other law-writers define an ex post 
facto law to relate to public punishment; and this certainly was the 
sense in which the framers of the Constitution received it, else why 
make use of the expression 1 retrospective’ also? This part of the act 
may, in a general sense, be called retrospective, but in legal phraseology 
it can not be called ex post facto. In my view of the Constitution, it 
can not be construed in violation of it. . . . Retrospective, here, 

was inserted from abundant caution. It was intended to embrace 
rights, and not modes, of redress; the last, from the nature of things, 
must be left open to legislative modification. It is not possible for me 
to suppose that any body of enlightened men ever intended to put it 
out of the power of the legislature to provide a remedy for many past 
transactions, which the immutable principles of justice might require; 
such an institution must suppose absolute foresight in man, which we 
all know is not one of his attributes. The wisest government that ever 
existed could not possibly foresee many evils which might require a 
remedy consistent with justice and the law of our nature. The legis- 


1 See same cage, art. 1, sec. 6, p. 19; art. 1, sec. 
8, p. 35. 


9 T. & S., 2448; M. & V.. 3306. 



140 


TENNESSEE CONSTITUTIONAL LAW. 


lature, as it appears to me, meant that the word ‘retrospective'’ should 
be restrained in its acceptation to contracts, but not marriage contracts, 
being incapable in its very nature of the application of such a principle. 
The ninth section of this act presents a distinct cause of divorce a 
mensa et thoro , which is entirely prospective; the causes expressed in 
the first section are entirely a vinculo matrimonii .” 2, 2. Jones v. Jones. 
1804. 

Remedy Existing at Time Contract Was Made — Statutes Affecting.— 
Peck, J.: “A distinction must be drawn between those acts of the legis¬ 
lature which come in aid of a remedy and such acts as impose clogs and 
restrictions upon remedies existing at the time the contract was made. 
Had the legislature said that the bank should not have process for the 
collection of her debts, or that the courts should not be open to the 
complaints of the bank, the case would be wholly different from this, 
where all that is attempted is to provide for such defects in the existing 
remedies as the bank had laid hold of to evade the payment of her 
notes. . . . It is not an infringement of the Constitution to come in 

aid of a remedy, and a contract is not impaired by a law which is made 
to enforce it; for we are as well to consider the contract the plaintiff 
below had with the bank, as to consider the contract with the State 
created by the charter.” 10, 265. x Yanzant v. Waddel. 1829. 

Accident Previous to Enactment of Law. — The statute under consid¬ 
eration was 2 ch. 41, passed March 2, 1858. Wright, J.: “The accident, 
namely, the killing of the cow of the defendant in error, for which the 
present action is brought, occurred, according to the bill of exceptions, 
in August, or September, 1857; and, if need be, we think it might be 
readily shown that this Act of Assembly can not have retrospective 
construction, so as to embrace this case. It is only requisite that we 
refer to Dash v. Kleeck, 7 Johns., 478, and the authorities there cited, 
to establish this position.” 41, 74. Horne v. M. & 0. B. B. Co. 1860. 

Common Law Considered in Connection With This Provision—English 
Construction—Statute Should Not be Construed to Operate Retrospectively 
if Susceptible of Any Other Construction—Interest on Bank Deposits— 
Contract Made Before Law Took Effect.— Sec. 1816 of the Code of 1858 
provided that “no bank shall pay any interest or other compensation in 
consideration of deposits.” The Code took effect May 1, 1858. The 
agreement between the parties was made March 29, 1855. The circuit 
judge held that by the provision of the Code referred to, the bank was 
exonerated from the obligation of its contract to pay interest on the 
deposit after the 1st of May, 1858; and the only question was did the 
court err in thus holding? 


1 See same case, art. 1, sec. 6, p. 14; art. 1, sec. 
8, p. 57. 


a Code 1858,1166; T. & S., 1166; M. & V., 1298. 



RETROSPECTIVE LAWS. 


141 


McKinney, J.: “The argument for the bank is that the contract was 
annulled by the subsequent Act of the Legislature. It is certainly an 
established doctrine of the common law that if one agrees or covenants 
to do an act which it was lawful for him to do at the time of the con¬ 
tract, and an Act of Parliament comes after, making it unlawful, the 
statute repeals and avoids the covenant or agreement. 1 Ld. Raymond, 
317,321; 1 Salk, 198. See, also, Parsons on Contracts, vol. 2, 186; 5 
Cowan Rep., 538. Whether or not this doctrine of the common law can 
be reconciled with the provision of our State Constitution ... is a 
question not absolutely necessary to the determination of the present 
case; for we feel very clear, that, both upon principle and authority, 
the provision of the Code can not be construed to have a retrospective 
effect, and that its operation must be limited to contracts made after 
its passage. 

“To avoid misapprehension, however, in regard to our views, we 
unhesitatingly express the opinion, that to give the enactment in ques¬ 
tion such a construction as to make it operate upon past contracts, 
would be to bring it directly in conflict with the provision of the Con¬ 
stitution above referred to. We concur with Mr. Kent, that a retro¬ 
spective statute, affecting and changing vested rights, is founded on 
unconstitutional principles, and consequently, inoperative and void. 
1 Com. (9th ed.), 508. This doctrine, however, does not, in general, 
apply to remedial statutes, which may be of a retrospective nature, 
provided they do not impair contracts, or disturb absolute vested 
rights, and only go to confirm rights already existing, and in further¬ 
ance of the remedy, by curing defects, and adding to the means of 
enforcing existing obligations. Ibid., and note. 

“The doctrine that a statute is not to have a retrospective effect, is 
clearly shown (in the very elaborate case of Dash v. Van Kleeck, 7 
Johns. Rep., 477), to be founded not only in the jurisprudence of 
England, but upon priuciples of general law. In his opinion in that 
case, Mr. Chief Justice Kent, says: ‘It is a principle in the English com¬ 
mon law, as ancient as the law itself, that a statute, even of its own 
omnipotent Parliament, is not to have a retrospective effect/ for 
which he cites numerous ancient standard authorities, as well as modern. 
Lord Bacon lays it down, that no statute is to have a retrospect beyond 
the time of its commencement. 6 Bac. Abr., 370; 2 Inst., 292; 2 Mad., 
310, 228; Duarris on Statutes, 680. Mr. Blackstone regards it as a first 
principle, that all laws are to commence in future, and operate pros¬ 
pectively. 1 Com., 44. 

“This principle received an impressive recognition in the court of 
king’s bench, in giving a construction to the statute of frauds (29 
Charles II, ch. 3), which enacted, that ‘from and after the 24th of June, 
1677, no action should be brought to charge any person upon any agree- 


142 


TENNESSEE CONSTITUTIONAL LAW. 


ment, etc., unless such agreement be in writing.* After the passage of 
this statute, a suit is brought upon a parol promise made before, but to 
be performed after, the day specified in the statute, and the court agreed 
unanimously, that the statute could not have a retrospective effect, so 
as to take away a right of action to which a party was previously 
entitled; that it could only apply to parol promises made after the day 
mentioned in the statute; that the opposite construction would make 
the law repugnant to common justice. See 2 Shower, 17; 4 Burr., 2460. 
This doctrine has been adhered to, generally and steadfastly, in England; 
and it is to be found incorporated, as a fundamental principle, in the 
jurisprudence of the most enlightened and civilized States, ancient and 
modern; and this, by force of its intrinsic reason and justice, and not 
because of any positive constitutional prohibition to the contrary. The 
principle has likewise been adhered to in this country with great uni¬ 
formity of decision. See Sedgwick on Stat. and Com. Law, 188, 406; 7 
Johns. Rep., 477; 3 Dali. Rep., 391, and cases referred to. And the 
soundness of this principle of interpretation, is sufficiently supported 
by the most obvious principle of reason and justice, wherever past con¬ 
tracts or vested rights are involved, and from the positive restrictions 
imposed by the State and Federal Constitutions. 

“It is repugnant to every man’s common sense and reason and sense 
of justice that a contract or promise sanctioned by the existing law, and 
vesting the parties with positive legal rights, when made, should be 
annulled and rendered inoperative by a subsequent law. As has been 
justly remarked by Chief Justice Kent, there is no distinction, in principle, 
between a law punishing a person criminally for a past innocent act, or 
punishing him civilly, by divesting him of a lawfully acquired right. 
The very essence of a new law (as said by the same distinguished judge) 
is a rule for future cases. And, therefore, even in cases involving no 
question as to the inviolability of past agreements, or previously 
acquired rights, the authorities concur that a statute ought never to 
receive such a construction as would make it operate retrospectively, if 
it be susceptible of any other. In such case, it is said, we are to pre¬ 
sume, out of respect to the law-giver, that it was not intended that the 
statute should have a retrospective operation. The case before us fur¬ 
nishes a forcible- illustration of the wisdom and justice of the principle 
we have been considering, and of the constitutional restriction imposed 
upon the legislature. 

“The contract in the present case was sanctioned by the then exist¬ 
ing law. By implication of law, the bank was bound to continue to pay 
interest so long as it retained the deposit, or, at least, until it gave notice 
to Hannum of its determination to put an end to the agreement. This 
being so, it would be manifestly unjust and subversive of general prin¬ 
ciples of law, as well as of the Constitution, to give the statute such a 


RETROSPECTIVE LAWS. 


143 


construction as would make it defeat the right previously vested. We, 
therefore, hold that the provision of the Code has no application to the 
case, its operation being confined to deposits made after the first day of 
May, 1858, when the Code took effect.” 41, 399. Hannum Adm’r v. 
Bank of Tennessee. 1860. 

Act Changing Rights of Parties Accrued at Time of its Passage.— 
Cooke, Sp. J.: “The J Act of the Legislature of March 26, 1883, which 
provides that sec. 2291 et seq. of the Code be so amended that damages 
resulting to parties for whose use and benefit the right of action sur¬ 
vives, from the death consequent upon the injuries received, shall be 
recoverable in such action, does not apply to suits where the cause of 
action arose prior to the passage of the act. The act constitutes a new 
or additional cause of action. The rights of the parties were fixed 
under the law as it existed at the time of the injury, and the law which 
undertook to change those lights would be retrospective and void.” 79, 
127. C., St. L. & N. 0. JR. R. Co. v. Pound's Adm'r. 1883. 

Divorce—Act not Affecting Existing Suits.— TURLEY, J.: “It is Said 
that this act (1799, ch. 19) is repealed by the 2 Act of 1835, ch. 26, which 
makes different provisions, and only authorizes the court to allow alimony 
in cases of divorce a vinculo , as in cases of divorce a mensa. By the 
twenty-third section of that act it is provided that it shall be in force 
from and after its passage, and that nothing therein contained shall be 
so construed as in any way or manner to affect any suit that may be 
already brought and undetermined in any of the courts of this State for 
a divorce, either total or partial; but said suits shall remain and be pro¬ 
ceeded in, heard and determined by said courts, according to the laws 
in force at the time of bringing the same. This suit was pending before 
the passage of the act; but it is said that the proviso is unconstitutional 
and void. We do not think so. It is, we apprehend, for the first time, 
contended that the legislature has not the power, when about to establish 
a new rule of action, to give to it an operation entirely prospective. We 
think, therefore, there is no law, either written or unwritten, which for¬ 
bids this decree.” 19, 136. Chunn v. Chunn. 1838. 

Wills and Devises—Statutes Affecting. 

Legislature May Provide Remedy for Existing Right — Laws Vali¬ 
dating Registration of Deeds.— Haywood, J. : “David Beatty died leaving 
a will and made the defendants his executors, and therein, amongst 
other things, made the following devise and bequest: ‘I will and 
bequeath that the plantation I now live on be sold by public or private 
sale to the best advantage, and the proceeds thereof be laid out in land 
in the Indiana Territory, as well situated as can be procured, and the 


1 M. & V., 3130. 


8 Code, 1858,2467-8; T. & S., 2467-8; M. & V., 3324-5. 



144 


TENNESSEE CONSTITUTIONAL LAW. 


right thereof vested in my negroes, which I now own, viz: (naming 
them) each or all of them with their increase, to whom I give their 
entire freedom, and the settling of them on the above-named land, under 
the direction of my executors/ etc. Ann Hope, the sister of the 
deceased, claims the negroes, as his next of kin, and his lands as heir 
at law. The County court of Davidson, that being the county where 
Beatty resided at the time of his death, refused, when applied to for the 
purpose, to emancipate the negroes, and a decree was made in the 
present case, that twelve months should be allowed to Johnson to pro¬ 
cure their emancipation. He applied to the legislature, who then 
passed an act authorizing any Circuit court to which application might 
be made, to receive and consider of the petition for emancipation, and 
to grant it or not, as they might deem proper. The Circuit court for 
the county of Sumner was applied to, and granted the petition upon the 
terms prescribed by law, and the negroes were carried by Johnson to 
the State of Indiana, where they now are, emancipated and free. 
Johnson then sold the land directed by the will to be sold for purchasing 
another tract in Indiana for their maintenance. . . . 

“Did the trust fail for want of persons to take it? Suppose the 
direction had been to purchase land in Indiana for the use and benefit 
of a child of a free person, which should be born in the lifetime of these 
negroes, and such child should be born in their lifetime, the trust would 
vest in him, such birth being within the time limited to prevent perpetu¬ 
ities. So here, if the negroes be made free at all, it must necessarily be 
in their lifetime, and the estate will not be unalienable, waiting for the 
trust to attach beyond the time limited, and so is not void as tending to 
lock up the estate in perpetual seclusion from the purposes of commer¬ 
cial enterprise. If the trust be not void on account of its tendency to 
a perpetuity, then the objects of the testators’ bounty were capable to 
take in reasonable time after his death, though not capable at the time 
of his death and before emancipation; and there is more reason that 
they should take according to the will of the testator, than that the 
heir should take, against his express purpose that she should not. 

“But it is said that the property vested in Ann Hope, and could not 
afterwards be taken from her. Answer: It vested in her sub modo, as 
it does by descent to a more remote heir, until a nearer be born. As, 
suppose it vest in the brother of the deceased, and six or eight months 
afterwards the wife of the deceased is delivered of an heir. So here, 
the land vests in the heir till a purchaser come into esse under the 
power, and then in the purchaser, immediately, by and from the ancestor. 

“Again, it is said, that having vested in Ann Hope, it could not be 
taken from her by an Act of the Legislature. Answer: The legislature 
did not in the least degree interfere with the power, but left it precisely 
as it was at the death of the testator. Again, it is said, that the legis- 


RETROSPECTIVE LAWS. 


145 


lature had no right to qualify the slaves to become capable of taking, 
when, but for the legislature, they would have remained incapable. 
Answer: They were capable to be made free by the existing laws; they 
did not derive the capacity from an after Act of the Legislature. The 
legislature only provided a remedy for an existing right. It is not uncon¬ 
stitutional to provide a new or additional remedy for a just right 
already in being, and which would be lost and destroyed if no remedy 
were provided. Deeds not registered in time, upon this ground, may be 
admitted to registration by a new Act of the Legislature.” 10, 123. 
Hope v. Johnson et al. 1826. 

Retrospective Laws May Be Made Where They Do Not Impair Obliga¬ 
tions of Contracts Nor Divest or Impair Vested Rights—This is the General 
Rule — Laws Not Retrospective — Devise—After-Acquired Lands. — The 
will in controversy was dated October 3, 1830, and the testator died in 
1849. Houston, Sp. J.: “It is insisted that if the *Act of 1842, ch. 169, 
sec. 4, in terms applies to wills made before its passage, and the legis¬ 
lature intended that it should so operate, it is inoperative and void 
because in direct conflict with our Declaration of Rights, art. 1, sec. 20. 

. . . If this is true, then of course there is an end of the question, 

so far as the Act of 1842 is concerned. It is true that, taking the pro¬ 
vision in its literal terms, the Act of 1842, and all other legislation 
having in view past transactions of whatever nature or character, would 
be in conflict with it. But taking it in its limited and restricted signifi¬ 
cation, as defined by our courts of justice, and there are many cases of 
retrospective legislation that are not prohibited. But is the Act of 1842 
one of the cases not prohibited by it? This section of the Bill of 
Rights has been so often directly and indirectly before the courts, and 
has received such a uniform legal construction, that we do not feel 
authorized, were we so inclined, to depart from it. We understand that 
construction to be that retrospective laws may be made where they do 
not impair the obligation of contracts, or divest or impair vested rights. 
And hence the legislature may make laws for the extenuation or mitiga¬ 
tion of offenses; for repealing former laws; for the enforcement of con¬ 
tracts already made; or to make a paper, authenticated according to its 
directions, evidence, though not evidence before; laws affecting the 
authentication and solemnities of contracts; laws giving further time 
for the registration of deeds; laws validating deeds, and the defective 
probate of deeds; laws providing for the payment of the officers and 
agents of the State for services already performed; laws providing new 
and additional remedies for a just right already in being; laws modi¬ 
fying or changing remedies, and all other strictly remedial laws; and 
there are many other laws that are retrospective, according to the letter, 

> Code 1858. 2195; T. & S., 2195; M. & V., 3035. 


10 



146 


TENNESSEE CONSTITUTIONAL LAW. 


yet not prohibited by the Bill of Rights. 1 Meigs’ Dig., 305, 306. . . . 
A retrospective statute, affecting or changing vested rights, is generally 
considered in this country as founded on unconstitutional principles, 
and consequently inoperative and void. But this doctrine is not under¬ 
stood to apply to remedial statutes which may be of a retrospective 
nature, provided they do not impair contracts or disturb absolute vested 
rights, and only go to confirm rights already existing, and in furtherance 
of the remedy, by curing defects and adding to the means of enforcing 
existing obligations. 1 Kent, 455. 

“We are satisfied that the principle above stated, for there are, 
necessarily, cases almost without number, constantly arising under our 
system of government that require the passage of laws in reference to 
past transactions—not for the purpose of infringing rights, but to pro¬ 
tect them from loss or injury; and we are not aware of any case in 
which it has been held that a retrospective law, simply because retro¬ 
spective in terms, is unconstitutional and void. They have been so held, 
as connected with rights and obligations, where they affect or change 
vested rights, or impair the obligations of contracts. It is true that it 
has been said, by high authority, that retrospective laws are generally 
unjust, and neither accord with sound legislation nor the fundamental 
principles of the social compact. Story on Const., sec. 1392. But this 
can not be justly predicated of such retrospective laws as are sanctioned 
by our courts. It may be said that to open the door to the passage of 
any retrospective law is to open it to the passage of all such laws, and 
to an abuse of legislation on the subject; but this may be said of ail 
legislation on any subject. Our courts are the judges of the powers of 
the legislature, and are open to correct the abuses of these powers, and 
to guard against unconstitutional legislation; and as we must neces¬ 
sarily have retrospective laws, and as many such are wise and proper, it is 
for the courts to judge whether rights are divested or contracts impaired 
by them, and so to declare the law. Now, with this understanding of 
the meaning of the Bill of Rights as above stated, what is the character 
of the Act of 1842, ch. 169, sec. 4? It can not be denied that it materi¬ 
ally changes the character and effect of the will in question from what 
it would have had if the statute had not been passed. Its construction 
is different from what it would otherwise have been. It could not 
have passed after-acquired real estate; but now it may. It could not 
have been available, in the hands of defendant, as evidence of her title to 
the property in controversy; but now it may be. But this is all that can 
be said of the Act of 1842, and is this sufficient? If this difference of 
character and effect produced a like difference or change of vested rights 
under it and by virtue of it, then we would say that it comes within the 
prohibition, and would be inoperative. But is this so? Is any contract 
impaired, or right infringed or divested? It seems to us, most clearly, 


RETROSPECTIVE LAWS. 


147 


that such is not its effect. The law merely acts upon a paper which 
does not arise in contract, or vest rights or create obligations. It 
creates or establishes a new rule of law as to the paper and its subject- 
matter, to the injury of no person whatever. Although, as to form, the 
will was perfect in October, 1830, still it is ambulatory until the death 
of the testator; it is to be his will at his death, or not, as he may see 
proper to determine. It vests no rights. It imposes no obligation. It 
is virtually a blank until the death of the testator. It does not abridge 
his rights, but rather enlarges them. It enables him to do what before 
he could not do, however strong may have been his wish or intention, 
and however clear it might have appeared on the face of his will. We 
think the control of the whole subject of wills, and the transmission of 
property by will, is under the control of the legislature; and if the act 
had said that no estate, right, or interest in lands shall hereafter pass by 
will, would any of the land of Albert H. Wynne have passed to the 
defendant by virtue of his will? We can not conceive upon what prin¬ 
ciple it would have so done, under our decision on the subject of retro¬ 
spective laws; and the principle is the same in the case supposed and 
in this case; and we think that the Act of 1842, ch. 169, sec. 4, is not 
in conflict with the twentieth section of the Bill of Rights.” 32, 410. 
Wynne's Lessee et al v. Wynne . 1852. 

Judgments—Statutes Affecting. 

Judgment Against Surety on Writ of Error.— The question in this 
case was a writ of error upon which security was given before the 
passage of the ! Act of 1807, ch. 81, sec. 3. This act directs that the 
court shall enter up judgment against the principal and security, for 
twelve and one-half per cent interest. A motion was made against 
the principal and security. Held: “ This can not be allowed, as before the 
passage of the act the court could not give judgment against the secu¬ 
rity upon a writ of error without sci. fa. This act can not have a 
retrospective operation.” 1, 334. Shaw Assignee v. Bowen et al. 1808. 

Word “Retrospective” Followed by Explanatory Words—Meaning 

of_Posterior Legislation Confirming Past Transactions — Ex Post Facto 

Laws. —In considering the Act of 1819, ch. 19, sec. 1, which directed 
that “no execution shall issue upon a judgment until two years after 
its rendition, unless the plaintiff shall endorse upon the execution that 
the sheriff may receive in satisfaction the notes of certain banks, Hay¬ 
wood, J., said: “There is yet another part of our Constitution which 
some suppose takes from the legislature the power to suspend execu¬ 
tion. . . . This clause, taken in its common and unrestrained sense, 

extends to all prior times, persons, and transactions, whether civil or 


1 H. & C., vol. 1, p. 6; Code 1858 , 3137; T. <Sc S., 3114; M. & V., 3827. 



148 


TENNESSEE CONSTITUTIONAL LAW. 


criminal; yet, certainly, there are some cases coming within its general 
scope to which it does not extend. It does not extend to ex post facto 
laws, for they are prohibited by the Bill of Eights, sec. 11. It does not 
extend to a law for extenuation or mitigation of offenses, the remission 
of penalties or forfeitures. A present law may repeal a former one, or 
may enforce a contract heretofore made, or may make evidence a paper 
authenticated according to its directions which was not evidence before, 
or may suspend computation under the Act of Limitations for a certain 
time past, during which a war existed, or no courts were in being; nor 
are laws void which give further time for the registration of deeds, nor 
for the disallowance of land warrants unfairly issued; nor divorce laws; 
nor laws making allowances to members of assembly, their clerks and 
doorkeepers, after the service is performed. That the term retrospect¬ 
ive has a very restrained meaning, is abundantly testified by the con¬ 
duct of subsequent legislatures and of the judicial tribunals of the 
country. In February, 1796, the Constitution was made; in March, 
1796, the legislature gave further time for the registration of deeds, 
and made registrations under it as good and valid to all intents and 
purposes as if such deeds had been registered in proper time. Similar 
laws have been made in 1801, 1803, 1805, and almost at the expira¬ 
tion of every two years. These acts have been frequently held valid 
by judicial determinations. The Acts of 1796, ch. 20; 1797, ch. 14 and 
43, sec 4, ch. 45; 1799, ch. 35, sec. 2, ch. 47; 1801, ch. 19; 1807, ch. 85, 
are all of them retrospective in the most general sense of that term; 
but they are of unquestionable validity. And what are the laws of 
1801, ch. 24; 1803, ch. 25; 1805, ch. 4, for confirming administrations 
granted and marriages solemnized under the Franklin government, and 
for giving old verdicts the force and effect of judgments entered upon 
them? In short, so many are the past transactions upon which the 
public good requires posterior legislation, that no government can pre¬ 
serve order, suppress wrong and promote the public welfare, without 
the power to do so. It is not withheld from any of the State govern¬ 
ments, unless the present clause be an exception. Nor does the genius 
of free government demand that it should not be exercised, as it does, 
that the legislature should not have power to pass an ex post facto law; 
because with that engine, a dominant faction might spread destruction 
through the ranks of its political adversaries. 

“The laws of 1783, ch. 7; second 1794, ch. 13; 1803, ch. 1, sec. 5, 
were all of them retrospective in whole or in part, but were never 
deemed unconstitutional. All these, and many other acts of the legis¬ 
lature, establish the truth of the position that there are some, and 
indeed many, cases in which retrospective laws may be made. We 
have viewed with earnest attention the Bill of Eights, sec. 20, and 
have considered the inconveniences which any one interpretation will 


RETROSPECTIVE LAWS. 


149 


produce, and have finally settled down in this opinion that the word 
retrospective, as in the North Carolina and Maryland Constitutions, 
it is followed by explanatory words, so here it is explained by the 
words which immediately follow, ‘or law impairing the obligation of 
contracts/ and that the whole clause and both sentences taken together 
mean that no retrospective law which impairs the obligation of con¬ 
tracts, or any other law which impairs their obligation, shall be made, 
the latter words relating equally to both the preceding substantives; 
and, therefore, that the term retrospective alone, without the explana¬ 
tory words, can have no influence in this discussion.” 7, 16. 1 Town¬ 
send v. Townsend et al. 1821. 


Judgment by Motion Against Sheriff—Pre-existing Default.—REESE, 
J., held: “An act which gives a summary judgment by motion against 
a sheriff, although its terms are sufficiently comprehensive to embrace 
previous defaults, yet, as it creates a new right as well as furnishes a 
new remedy, can not be permitted to have a retroactive application to 
cases of pre-existing default.” 18, 506. Wood v. Orr. 1837. 


Rights Under a Decree Not Affected by Subsequent Legislation.— 
Reese, J., held: “An act of the legislature curing defective probates 
and registration, passed subsequent to the rendition of a decree of the 
Chancery court settling rights under the defective probate, can not have 
any effect on those rights.” 26, 85. Garnett et al v. Stockton et al. 
1846. 

Regulation of Remedy— 1 2 Act of 1844, Ch. 167. — GREEN, J., held: 
“This act, being the regulation of the remedy and not the creation of a 
right, is not retrospective in the sense in which the Constitution pro¬ 
hibits the passage of such laws, and applies to all cases where the bills 
are filed after its passage, although the contracts were entered into, or 
the judgments obtained, before its enactment.” 26, 130. Brandon v. 
Green. 1846. 

Act Authorizing Revival of Suits in Certain Cases.— The legislature, 
in 1850, passed an 3 act authorizing the revival of suits in actions for 
forcible or unlawful entry and detainer. The second section of this act 
declares “that this act shall apply to all cases now pending, and which 
have not been abated by the order and judgment of the court where 
such suit may be pending.” 

Lyon, Sp. J.: “This case is clearly embraced in the provision of 
the act, and if the second section is not in violation of the Constitution, 
then the circuit judge erred in pronouncing judgment of abatement. 
But we think that it is. The Act of 1842, ch. 86, under which these 


1 See same case, art. 1. sec. 8, p. 45: art. 1, sec. 

17, p. 113; art. 1, sec. 2D, post. 


* Not now in Code. 

3 Code 1858, 3369; T. & S., 3369; M. & V.,4t01. 



150 


TENNESSEE CONSTITUTIONAL LAW. 


proceedings were instituted, not only gives to the plaintiff the posses¬ 
sion of the premises for which he sues, if successful, but rent and dam¬ 
age also. The Act of 1850 necessarily bestows upon the persons in 
whose names such suits are revived all the rights which are secured to 
parties under the Act of 1842, ch. 46. The heir or real representative 
of the plaintiff, if the suit is revived in his name, would, therefore, be 
entitled to recover rents and damages, and the personal representative, 
if revived in his name, possession of the premises — rights to which 
they were not respectively entitled previous to the passage of the Act 
of 1850. The act is, therefore, retroactive in its operation, so far as it 
is sought to be applied to cases pending at the time of its passage, and 
is so far null and void.” 32, 38. Tucker et al. v. Burns. 1852. 

Statute to Operate Prospectively, Unless on its Face it Imports Retro¬ 
spective Operation—Vested Rights. — SNEED, J.: “It is a general rule 
that a statute is to operate prospectively, unless upon its face it imports 
a retrospective operation; but it is not every retrospective law that is 
objectionable in a constitutional sense. It is said that a vested right of 
action is property, just as tangible things are, and is protected from any 
arbitrary interference by the legislature; but this doctrine is referable 
to such rights of action as spring from contracts or from the common 
law. Cooley, 362. But the right to a particular remedy, says the same 
authority, is not a vested right. Id., 361. The State has complete con¬ 
trol over the remedies of its citizens in the courts. It may give a new 
and additional remedy for a right already in existence, or may abolish 
old and substitute new remedies. Id., 361, 362. It may modify an 
existing remedy, or remove an impediment in the way of judicial pro¬ 
ceedings. Id., 374.” . . . Held: “The 2 Act of 1871, ch. 78, simply 

removes an impediment from judicial proceedings, and was intended to 
meet the hardships of cases, like the one at bar, where there is a meri¬ 
torious cause of action and no likelihood of administration. It was 
intended to reach back to causes of action occuring under the Code; 
but it is not retrospective in the sense of the Constitution.” 56, 847. 
2 Collins v. E. T.j V. & Ga. R. R. Co. 1872. 

Deeds , Acknowledgments, Etc. 

Law Validating Registration of Deeds. — Dillon claimed under a grant 
from the State of North Carolina, and by several mesne conveyances 
deraigning the title to himself. There was a deed from Donnelson to 
Tyrrell, which was proved by one witness in the year 1804, and regis¬ 
tered in the spring of the year 1807. Question: Is the deed from Don¬ 
nelson to Tyrrell sufficiently proven and registered? Held: “The pro¬ 
bate on the deed was made under the authority of the Act of 1803, ch. 57; 


1 T. <fc S., 2291; M. & V., 3130. 


2 See 64 , 695. 



RETROSPECTIVE LAWS. 


151 


but at the time of the registration there was no law to authorize it, nor 
did any act refer to registration of deeds previously made after this 
took place until the Act of 1811, ch. 39, the words of which are: ‘And 
where any such grants, deeds, or other instruments have been regis¬ 
tered, though not within the time limited by law, the same shall be as 
valid as if registered according to the provisions of the before recited 
Act’ of April, 1809, ch. 26. This act clearly makes good the registration 
of the deed.” 2, 262. Jackson v. Billon's Lessee. 1814. 

Act Vacating Entries.— ROANE and WHYTE, J. J., held: “The fourth 
section of the Act of 1813, ch. 84, vacating entries not surveyed within 
the time prescribed, is not a violation of this section.” 6, 263. Hunts¬ 
man's Lessee v. Randolph. 1818. 

Statutes May Validate Imperfect Acknowledgments. — TURLEY, J.: 
“It is said that Hugh Montgomery never acknowledged the deed in any 
court having jurisdiction to receive it. His acknowledgment was made 
in the County court of Wythe, being a court of record, and it is prop¬ 
erly certified; but this acknowledgment was made on the 12th day of 
April, 1797, at a period of time when there was no law authorizing it, 
and it is contended that it is therefore void and inoperative. Though 
this deed was thus acknowledged in 1797, yet it was not registered in 
Davidson county till December 11, 1807; and on the 30th day of 
November, 1807, an act was passed by the legislature of the State of 
Tennessee, by which it was provided ‘that all conveyances for the 
transfer of real property, which should be thereafter exhibited for reg¬ 
istration, shall first have been proven or acknowledged, in the case of 
resident bargainors, in the court of the county or district where the 
land, or a part thereof, lies; and, in the case of non-residents, in some 
court of record in some one of the States or Territories of the United 
States.’ The words ‘shall have been first proven,’it is contended, gives 
the statute a retrospective operation, and makes good the acknowl¬ 
edgment of 1797; and so we think. When the deed was offered for 
probate it had been acknowledged in a court of record in the State 
of Virginia, by the bargainor, who was a non-resident, and there¬ 
fore it fell within the express words of the statute, and was properly 
registered. We are therefore of opinion that the deed of bargain and 
sale from Hugh Montgomery and his wife, Euphemia, to Moses Austin, 
has been executed according to the forms of law, and passes the estate.” 
19, 456. Montgomery v. Hobson. 1838. 

Retrospective Act to Cure Defective Probate Good. — REESE, J.: “The 
deed in this case was recorded in 1817 in ‘the county of Lunenburgh, 
Va.,’ and the clerk of that county, not giving a copy of the record of 
probate, certifies that it was duly approved according to law. This 


152 


TENNESSEE CONSTITUTIONAL LAW. 


probate, before our Registration *Act of 1838-1840, would have been 
held insufficient. It is good by the terms of that statute. But it is 
said that a certificate of probate which, before that statute, could not 
have been registered, can not now be received; that to permit it would 
give to the act an operation violative of the Constitution. To this prop¬ 
osition we are unable to yield our assent. Registration laws are founded 
upon reasons of public policy. By them it is intended that certain 
instruments evidencing a transfer of property shall be made known, 
and be subject to public inspection, and also that the proof of their 
existence shall be perpetuated. The solemnities of their execution and 
authentication may be as many, or as few, and of that precise character 
which the legislature may prescribe. The subject is within their com¬ 
petency. And whether their provisions relate to the future or the past, 
they affect the remedy and not the right.” 21, 594. Hughes v. Cannon. 
1841. 

Evidence. 

Book, Etc., of Deceased Notary Public Admissible as Evidence—What 
Laws Not Retrospective. — The constitutionality of the 1 2 Act of 1820, ch. 
25, providing that the book, or a sworn copy thereof, of a deceased notary 
public shall be prima facie evidence of the fact of notice, etc., in certain 
cases, was questioned as being retrospective. Haywood, J., in decid¬ 
ing the case, said: "It is most perfectly correct, so far as it regards the 
construction of laws, that a retrospective operation shall not be given to 
them, unless the manifest meaning of the law be that it should have 
such operation; but where such meaning is plain, the will of the legis¬ 
lature should be conformed to in fixing the construction. When it is 
once determined that the law is manifestly retrospective, then, and not 
before, arises the question whether it be repugnant to the Constitution 
or not. Upon this point it might be sufficient to refer to two adjudicated 
cases; one in Overtoffs Reports, the other in the late opinion upon the 
indorsement laws; for these ought to settle the controversy, unless 
palpably erroneous, and then they ought to be rejected, as was done in 
the case of appeals from orders for roads, and from a practice in equity 
which had been established for several years at Knoxville two or three 
terms ago, and in several instances in modern times; but quitting hold 
upon these, and briefly considering the point upon principle, the result 
must be the same. . . . Does it mean all retrospective laws in 

general, or only some of a particular description, and if the latter, 
of what particular description? Not retrospective laws in general, for 
then no law could be made for the remuneration of past services, not 
even the members of assembly, their clerks and doorkeepers, at the end 

1 Code 1858, 2084, 2086; T. & S., 2084, 2086; M. & V., 2898, 2900. See, also, 21, 344 ; 28 , 547 ; 36, 
381; 34,513; 39,425 ; 41,414. 

a H. & C., vol. 1, p. 234; Code 1858, 1801, 3787; T. & S., 1801, 3787; M. & V., 2472, 4536. 



RETROSPECTIVE LAWS. 


153 


of each session of assembly. Nor could further time be given for the 
probate and registration of deeds, of which there never was any doubt 
from the first assembly after the formation of the Constitution to this 
day. Such probates and registrations have been sanctioned in a thou¬ 
sand instances by our courts of justice. Nor can it mean laws made 
for the preservation and establishment of just rights and titles, which 
have become imperfect and infirm by the non-observance of some legal 
ceremony; for these laws are not to take away rights, but to confirm 
and establish them. 

“ Laws for providing easier modes for proving deeds; for rewarding 
past services; for amending mistakes in grants and deeds; forgiving 
verdicts in evidence instead of judgments; for legalizing marriage made 
under the Franklin government, and judgments and sales under its 
authority; and acts of limitation suspended during the time a war 
lasted; in such instances, the law is retrospective, but not unconstitu¬ 
tional ; because, not such retrospective laws as this article of the Con¬ 
stitution prohibits. There are some retrospective laws which it does 
prohibit; ex post facto laws, for instance, and laws impairing the obliga¬ 
tion of contracts; these are justly prohibited, because they destroy 
existing rights, not preserve them from destruction. If there be any 
other such laws which the Constitution prohibits, time and future 
emergencies will bring them to light; but to say in general all retro¬ 
spective laws are void, is to introduce at one breath all the disorders 
which have been suppressed by the acts before mentioned, and by many 
others which are not at present particularly remembered; and to wrest 
from the legislature a power which has been hitherto exercised to the 
great benefit of the community, and for which, in various instances, 
complete and perfect justice could not be procured without the use of 
such laws, and is what this court, in my judgment, have not the right, 
and should not have the wish to do. Whenever a legal right did once 
exist, and is likely to be lost by some accident, omission, or imperfec¬ 
tion, an act of the legislature may be interposed to prevent the loss, 
and to give stability to such rights. In such case no one is deprived of 
his property, but on the contrary, loss of property is obviated, and just 
and equitable rights which conscience sanctions are preserved. This 
the Constitution does not prohibit, constant usage justifies, and con¬ 
science requires. Far otherwise would it be if a contract were violated, 
or the property of one man taken and given to another.” Whyte, J., 
dissented, and Brown, J., took time to advise. 7, 266. Bell v. Perkins. 
1823. 


154 


TENNESSEE CONSTITUTIONAL LAW. 


Back Assessments. 

Assessment of Omitted Property May be Made. —COOPER, J., held: 
“ The property of a railroad company liable to taxation for years pre¬ 
vious to the Act of 1875, which first created a State Board of Assessors 
for the assessment of such property, may be assessed under a subse¬ 
quent act of the legislature expressly providing for its assessment for 
the taxes of those years.” 82, 56. The State v. M. & C. B. R. Co. 1884. 

Undervaluation—Payment of Tax—Re-assessment. — The question 
here was the validity of the Act of 1887, ch. 2, sec. 24. Lurton, J.: 
“The assessment of property, omitted from the assessment made by 
the regular assessor, is expressly authorized by the Act of 1887. We 
have repeatedly sustained the validity of such assessments and the con¬ 
stitutionality of the acts authorizing them. . . . 1 That part of the 

act which authorizes an additional assessment when the original assess¬ 
ment has been upon an inadequate valuation, is not new legislation. 
The same provision was contained in the Act of 1873, and a re-assess- 
ment made of the property of the Louisville & Nashville Railroad Com¬ 
pany was sustained by this court as being authorized by that act. 7 
. . . We do not see any constitutional objections to such legislation. 

The objection that the actual payment of the tax as originally assessed 
should preclude any further or additional assessment, does not go to 
the constitutionality of the act. The objection is not of serious import 
in any view of it.” 87, 414. 1 Street Railroad Co. v. Morrow. 1889. 

Statutes Affecting Foreign Corporations. 

Insurance Policies—Regulation of Liability—Act of 1893, Ch. 107, 
Sec. 1 —Terms of Admission.— BEARD, J., held: “The court will not 
construe as retrospective, Acts of 1893, ch. 107, sec. 1, making void 
stipulations limiting liability on insurance policies to less than the full 
amount of loss, if that does not exceed the amount of insurance. The 
rule is well settled that the courts will give a statute prospective, and 
not retroactive force, unless the purpose that it should have the latter 
effect is expressed by clear and positive command, or it is to be inferred 
by necessary or unequivocal and unavoidable implication. Statutes can 
not be obnoxious to any constitutional objection which prescribe terms 
upon which foreign corporations shall enter the State, or which exclude 
them altogether.” 95, 248. 2 * Dugger v. Insurance Co. 1895. 


1 See same case, art. 2, sec. 28. 


2 See same case, art. 1, sec. 8, p. 44; also under 

U. S. Const., 14th Amend. 



LAWS IMPAIRING CONTRACTS. 


155 


Laws Impairing Obligation of Contracts . 1 

Comity of States. 

State and United States Constitutions. — SNEED, J.: “ Whatever con¬ 
stitutes a good defense in the State where the contract is made or to be 
performed, is equally good in the State where the contract is litigated, 
with the important qualification that such defense is consistent with the 
paramount law of the land. The paramount law of the land in this 
country is the Constitution of the United States, and the law made in 
pursuance thereof, and the treaties made, or which shall be made, under 
the authority of the same, and the judges in every State shall be bound 
thereby, anything in the Constitution or laws of any State to the con¬ 
trary, notwithstanding. Const. U. S., art. 6, sec. 2. And ‘whether the 
State law is organic in its Constitution or any ordinance, or whether it 
be a statute, if it violate the Constitution, laws, or a treaty of the United 
States, it is simply void, and the courts of every State are bound by the 
supreme law, and not by the State law. 1 Marbury v. Madison, 1 Cr., 137; 
Calder v. Bull, 3 Dali., 386; Satterlie v. Wattisou, 2 Pet., 380; ex parte 
Garland, 4 Wal., 399. The obligation of a contract can no more be 
impaired by the Constitution of a State than by an act of its legislature. 
Dodge v. Woolsey, 18 How. U. S., 331. And so it was held by this court 
that ‘a convention of a State has no power to violate contracts more 
than an ordinary legislature. 1 If it had, there would be no safety in 
times of excitement, under our form of government, for the most 
sacred rights.” 61, 47. Lewis v. Woodfolk. 1872. 

Statutes Providing Compensation for Improvements on Beal Estate. 

Improvements—Legal and Equitable Remedies—Legislature Pre¬ 
sumed Not to Have Intentionally Violated the Constitution — Rules of 
Construction. —This was a suit at law to recover the value of improve¬ 
ments made by Townsend on land recovered by Shipp in an action of 
ejectment commenced in 1808. The improvements were surrendered in 
1812. The verdict and judgment being against Townsend in the Circuit 
court, he obtained an appeal. The constitutionality of the 2 Acts ot 
1796, ch. 43, and 1805, ch. 42, was considered. Overton, J.: “As 
the case before the court is a suit at law, and not in equity, it remains 
to be considered how far these statutes are coincident with common 
law principles. The first act is in these words: ‘That if any grantee or 
person claiming by deed of conveyance, founded on a grant, hath, by 
virtue thereof, obtained peaceable possession of any tract of land, and 
shall, at any time thereafter, be dispossessed by due course of law, or 

*For indirect or unimportant mention of this clause, see 11 , 354; 14 , 216; 39 , 416; 59 , 237; 
65 , 631; 71 , 472. * 

a Hay. Rev., 247-372; H. & C., vol. 1, p. 49. 



156 


TENNESSEE CONSTITUTIONAL LAW. 


otherwise put out of possession, without his, her, or their consent, first 
had and obtained, that then, in that case, the person so dispossessed 
shall be entitled to recover at common law from the person to whose 
use the dispossession was so made the value of the improvements which 
he, she, or they have made on the said land/ The second act, being in 
pari materia , must be taken in connection with the first. It re-enacts 
the provisions contained in the first, and introduces two new ideas: 
First, that a person claiming under a lawful entry shall be entitled to 
compensation for improvements; secondly, that the value of the 
improvements shall be a lien on the land improved. In the interpreta¬ 
tion of these acts, it is insisted on the part of the plaintiff that he is 
entitled to compensation for all improvements made previous to the 
time of eviction. In a waste and woodland country, as this is, the legis¬ 
lature must have designed to favor those who had opened land, and 
had contributed to clear the country of the encumbrances of forest 
timber. To give the acts a restrictive interpretation would discourage 
agriculture and the improvement of the country—two objects which the 
legislature evidently had in view. 

“This interpretation involves fundamental principles of the highest 
concern to society in a free country. At this day it would be time mis¬ 
spent to descant at length on the principles of the Constitution and 
government under which we live. Let it suffice to observe that they 
secure to the honest and industrious the exclusive enjoyment of the 
fruits of that honesty and industry, and, in other words, the undis¬ 
turbed use of their property. No man can be deprived of it but by his 
own consent, unless for public use, and not then without just compen¬ 
sation. These principles being inseparably interwoven in the frame 
and texture of our Constitution, can not be destroyed by a legislative 
act. In deference to the legislative authority, however, we never pre¬ 
sume they designed to violate the Constitution nor the sacred rights of 
freemen. Any interpretation having this effect can not be admitted. 
The acts under consideration must be so interpreted as to steer clear of 
a violation of these constitutional principles. Where an act can have 
effect without obtruding on first principles, it is fair to give it that 
interpretation, because the legislature are never presumed to violate 
these principles where a meaning can be fixed to their expressions 
which would avoid such a conflict. . . . These acts must be so in¬ 
terpreted that they may stand with the principles of the Constitution. 
It seems to the court that, consistently with these principles, the reme¬ 
dial part of the act can not be extended any further than the ground on 
which courts of equity have, previous to this, acted. The general prin¬ 
ciples laid down in the acts were perfectly coincident, we believe, with 
the grounds of relief heretofore established by those courts. It is true 
the limitations or modifications of those which are recognized in equity 


LAWS IMPAIRING CONTRACTS. 


157 


make no part of the act; they were too numerous to be delineated, or 
capable of definition if seen. We believe neither was the case in the 
nature of things; nor has it been usual, when legislating on general 
principles, to specify exceptions or modifications of those principles. 
Such things from the nature of legislation, which is conversant in gen¬ 
erals and not particulars, are peculiarly the subject of judicial inter¬ 
pretation. 

“ Before the passage of these acts, any remedy which might have 
existed to recover the value of improvements was in a court of equity, 
and not at law. The acts are so far alterative that they afford a remedy 
at law where equity formerly afforded relief; but it can not at present 
be seen that a rational construction of those acts will enable us to go 
any further. At the same time it seems proper to remark that, as the 
act has made a legal subject of complaint out of an equitable one, it 
necessarily affords to the owner of the better title a legal defense on 
all the grounds on which he could have defended himself or opposed 
the claim of the improver in a court of equity.” 3, 294. Townsend v. 
Shipp’s Heirs. 1813. 

In the above opinion the court did not refer to the Act of 1809, ch. 
31, sec. 11, Overton, J., probably agreeing with counsel for appellees, 
that it could only apply to posterior cases. This act provided: “That 
where any person hath seated him, her, or themselves, on any spot of 
land, and hath entered the same with an intent to secure a title there¬ 
for, and said land had actually never been granted or surveyed at the 
time such entry was made, and afterwards was taken by an older entry, 
then and in such case the person so seated on said land shall be entitled 
to receive pay from the rightful owner thereof, to the value of his 
improvement.” 1 The Act of October, 1813, ch. 24, provided: “That 
hereafter, when an action of ejectment shall be brought in any of 
the courts of this State, where the tenant in possession or defendant in 
such suit shall have color of title to the premises in dispute, or any 
part thereof, either by grant, deed of conveyance founded upon a grant, 
or entry for the same lying in any part of this State, or claim by occu¬ 
pancy and pre-emption south of French Broad and Holston,” etc., 
that the defendant may give notice that he means to claim the 
value of his improvements on the trial; and that the lessor of the 
plaintiff may also give notice that he means to claim the amount of the 
mesne profits, “and it shall be the duty of said court upon the trial of 
such action of ejectment, to permit such defendant or tenant in posses¬ 
sion to prove to the jury empaneled to try such ejectment, everything 
appertaining to the nature and value of his improvement on the laud in 
dispute,” etc., “provided that no improvement shall be taken into the 
valuation and allowed for, that shall have been made after the execution 


H. & C., vol. 2, p. 68. 



158 


TENNESSEE CONSTITUTIONAL LAW. 


of the original writ in such suit, or after the lessor or lessors of the 
plaintiff, his or their agent or attorney, shall have served said defendant 
or tenant in possession with a written notice that he or they claim title 
to the said land, specifying in the notice the nature of his claim; neither 
shall any mesne profits be valued and recovered, unless such as shall 
have occurred after the commencement of suit, or notice given as afore¬ 
said.” 1 It was on the Act of 1813 that the proceedings were based in 
the following case of Bristoe v. Evans and Campbell, decided in 1815. 

Grant from the State — Compensation for Improvements — Rational 
Rule — Act to be Reconciled with Constitution if Possible — All Depart¬ 
ments Bound by Constitution — Implied Repeal. — This was an ejectment 
suit in which plaintiff’s offer of parol evidence to prove the value of his 
improvements was rejected because he had not shown such color of 
title as was contemplated by the act. Concerning the constitutionality 
of the Acts of 1796 and 1805, the Supreme court adhered to the opinion 
expressed in the preceding case, and with reference to the constitu¬ 
tionality of the Act of 1813, Overton, J., said: “ In point of fact, courts 
presume that every act of the legislature is constitutional. In defer¬ 
ence to the legislative organ of the government, this presumption 
necessarily arises. Legislators are under the same obligation to observe 
the provisions of the Constitution that is incumbent on this court. But 
so long as the judiciary is a separate and independent branch of the 
government, it must result that, if a legislative act should be plainly 
and obviously opposed to the Constitution, the judiciary is incapable of 
observing the injunctions of the law and disregarding the Constitution 
at the same time. One or the other must be dropped, and, as the Con¬ 
stitution is paramount to any law the legislature can make in opposition 
to it, the Court is left without any alternative. All the organs of the 
government are bound by the Constitution; it is the letter of attorney 
or authority under which all must act. So far as that authority is ex¬ 
ceeded, the act is void; but this excess should be plain and obvious, 
for it is the duty of courts to reconcile the provisions of an act of the 
legislature, with the Constitution, if by any means it can be done. . . . 

“ It is objected to a recovery for improvements in this case, that the 
mode of obtaining redress pointed out in the Act of 1813, can not be 
observed without violating the Constitution. ... It has been clearly 
shown that the method pointed out by the act might prove embarrass¬ 
ing and difficult in the extreme. . . . But this court disclaims any 
power of judging of the expediency of legislative acts. The power of 
the legislature is sovereign in this respect. 

“ The twentieth section of the Bill of Rights is the part of the Con¬ 
stitution principally relied on. ... A grant from the State is a 


»H. & C., vol. 1, p. 149, Code 1858, 3259, 3261; T. & S., 3259, 3261; M. & V., 3990, 3992. 



LAWS IMPAIRING CONTRACTS. 


159 


contract between the State and grantee, 6 Cranch, 136, Fletcher v. Peck. 
It is a contract executed ‘and contains obligations binding on the par¬ 
ties/ The State in parting with its interest engages that the grantee 
shall hold and enjoy the land granted in his own right, and as his own 
property, subject to such taxes and burdens as had been customary for 
the good of society before the formation of the Constitution. In the 
same case it is said, in page 135, ‘it may well be doubted whether the 
nature of society and government does not prescribe some limits to the 
legislative power; and if any be prescribed, where are they to be found, 
if the property of an individual, fairly and honestly acquired, may be 
seized without compensation? The authority of Judge Patterson is to 
the same effect, and to be found in the case referred to at the bar by 
the defendant’s counsel, 2 Dali., 310, where he observes ‘that the right 
of acquiring and possessing property, and having it protected, is one of 
the natural, inherent, and inalienable rights of man/ Therefore, any 
legislative act that impairs the obligation arising from the grant, that 
the grantee shall have the exclusive use and enjoyment of the property 
granted, subject to the limitations above mentioned, is unconstitutional 
and void. By this principle, which is believed to be a sound one, the 
Act of 1813 will be tested. Previously to the Constitution, and conse¬ 
quently to the passage of the act in question, the principles of equity 
afforded relief for improvements made on land by a person honestly 
acquiring it, believing the land to be his own. But he must have been 
a bona fide purchaser. His claim for improvements must be founded in 
the idea of unavoidable mistake arising from the usual perplexity of 
land titles. Kaims Prin. Eq., 104, 105, 106, and he must be a bona fide 
possessor. 

“ The idea that the State authorizes a man to make an entry in the 
surveyor’s book for the laud of another, knowing at the same time that 
such other person has a title to it; to make extensive improvements on 
the land, and under these circumstances sustain an action for the value 
of the improvements, is subversive of the clearest principles of natural 
right, in relation to property, and consequently of the Constitution, 
which guarantees to every man the exclusive use of his owu property. 
The authority of the case of Shipp’s heirs is decisive on this ground. 
Beside that case also decided, that without infringing the rights of 
property, the acts on the subject of improvements could not be carried 
any farther than the principles of equity had previously authorized. To 
go further would be impairing the obligation which the government had 
imposed on itself in granting the land, to protect the grautee in the 
exclusive use of the property granted. It hence results that the Act of 
1813 must be construed on the same principles with those previously 
made on the same subject, and in such a manner as to avoid an infringe¬ 
ment of the fundamental principles of society and of the Constitution. 


160 


TENNESSEE CONSTITUTIONAL LAW. 


That the legislature, under these fundamental restrictions, was compe¬ 
tent to point out the mode in which the improver should seek redress, 
no one can doubt. 

“ In this view there can be no ground for the constitutional objection 
as it respects the first part of the act. It is the latter part, or that 
which falls within the proviso, which deserves more attentive considera¬ 
tion. Nor would it seem, upon a nearer view, that any doubt ought to 
exist respecting the constitutionality of all that part of the proviso 
which precedes the word 1 neither 5 in the third line from the end of the 
first section. It does not follow because the legislature has said, 1 that 
no improvement shall be taken into the valuation and allowed for, that 
shall have been made after the execution of the original writ or service 
of written notice of the plaintiff’s claim,’ etc., that allowance shall, 
under all possible circumstances, be made for all improvements before 
that time. That point is left as it was before the passage of the act. 

111 Neither shall any mesne profits be valued and recovered unless 
such as shall have occurred after the commencement of the suit, or 
notice given as aforesaid.’ 

“To construe this sentence as an implied repeal of the antecedent 
law on the subject would be a manifest violation of the Constitution, by 
impairing the contract made with the State. The use and enjoyment of 
land consist in its profits or products. If one man use the property of 
another without his consent, he is bound to make compensation for it, 
and the State is under an obligation to afford the means of redress. In 
refusing redress, a man is deprived of his property without his consent, 
not for public purposes, and without compensation. 

“Beside, the contract of the State in granting the land is impaired, 
by permitting one person to take possession of the land of another 
without his consent, and knowing it to be his property, and bring him 
in debt for such improvements as he may think proper to make. Thus 
a person may be indirectly deprived of his property without his own 
consent, and without compensation. It certainly could not have been 
the intention of this act to deprive the owner of any redress for mesne 
profits until he had given written notice of his claim. The government, 
before granting the land, had it marked out and set apart by metes and 
bounds. In contemplation of law a person’s land is as clearly ascer¬ 
tained as his personal property. If a man take and detain my slave, 
can it be said the legislature is competent to pass a law, depriving me 
of all compensation for the injury I have sustained in the deprivation of 
the property, until written notice be given that the property is mine, 
or notice that compensation is meant to be claimed? If so, any other 
imaginable restriction can be imposed, leading to an entire deprivation 
of the property. When this property was granted, it became the prop¬ 
erty of the individual to whom it was granted, subject to such customary 


LAWS IMPAIRING CONTRACTS. 


161 


taxes or demands as the good of society required. To impose new, 
and unheard-of restrictions in the use of this property would certainly be 
impairing the obligation of the contract arising from the grant. The 
Constitution secures me in the exclusive use of the property; how is 
this affected if the State making the grant can afterward tell an indi¬ 
vidual, ‘You may make an entry for this man’s land, settle on it, use it, 
and make expensive improvements at his cost without his consent, and 
he shall not only be bound to pay you the value of all improvements 
you may make, but he shall receive no compensation for the use of his 
land until he give you written notice of his claim, specifying the partic¬ 
ulars thereof V . . . 

“The statute contains no express repeal of the former law, allowing 
compensation for mesue profits; the act does not necessarily repeal the 
law affording redress iu such cases, and, as such repeal would seem to 
entrench on constitutional provisions in the use of property, I can not 
suppose the legislature intended such repeal, any more than it can be 
supposed that it intended the tenant in possession should, under all cir¬ 
cumstances, be allowed for improvements previously to the time of the 
service of the writ or written notice. It is believed both these points 
are left in the same state as they were before the passage of the act. 
The act is constitutional and obligatory to the exteut of its provisions, 
but, beyond that, does not operate as an implied repeal of antecedent 
remedies.” 

In considering the rule of evidence to be adopted for the recovery 
of compensation for improvements, the court said: “The rational rule, 
therefore, seems to be, not the price of labor, but the amount of increase 
in value of the land, produced by those improvements. This amount 
the real owner ought to pay, he being benefited to that amount. To 
adopt a different rule would be an obvious violation of the constitu¬ 
tional rights of property, which can not be presumed, in deference to 
the legislature. ... It has been urged that the second section of 
the Act of 1813 is unconstitutional in preventing the lessor of the 
plaintiff from taking out a writ of possession after recovery until he 
shall deposit such sum of money as the jury may find against him for 
improvements. The court can not see it in this light. Before the pas¬ 
sage of any act by the legislature on the subject, a court of equity 
would restrain the lessor in ejectment from taking possession.until, by 
the perception of the rents and profits, he should have indemnified for 
the ameliorations. This is silent as to the accountability of the tenant 
in possession for rents and profits after the judgment; the law, there¬ 
fore is left as it stood before, and he will be obliged to account. In this 
respect, therefore, so far from the act being unconstitutional, it is per¬ 
fectly coincident with the principles of equity; those principles would 
compel a delivery of possession after the rents and profits shall have 


11 


162 


TENNESSEE CONSTITUTIONAL LAW. 


indemnified the possessor to the full amount of his verdict and judg¬ 
ment.” 2, 342. Bristoe v. Evans and Campbell. 1815. 

Compensation for Improvements on Land Held Under Color of Title 
Allowed, Provided Value of Improvements Does Not Exceed Value of 
Rents and Profits.—-G reen, J.: “This action was brought to recover 
the value of improvements made upon the defendant’s land. The 
defendant had the older and better title, and had recovered the land, in 
an action of ejectment, from the plaintiff', and also recovered $112 for 
rents and profits of the same land. The plaintiff had notice of the 
defendant’s better title before he made the improvements for which this 
suit is brought. The judge charged the jury that the statutes allowing 
pay for improvements to those who are turned out of possession by an 
action of ejectment are unconstitutional. The subject of the constitu¬ 
tionality of these Acts of Assembly has been several times before this 
court, and, although they have been commented on very much at length, 
yet a definite and satisfactory adjudication has not been made. To say 
that the Act of 1805, ch. 42, shall be construed according to its literal 
import, and to give it effect to the whole extent that the legislature 
seem to have intended, would doubtless be to impair the obligation of 
the contract which the State makes with every grantee of land. If a 
party who is in possession of another man’s land, under an entry which 
may have cost him but a few cents, can make whatever improvements 
he may choose, notwithstanding he may know of the existence of the 
better title, and, when turned out by an ejectment, may recover for the 
value of all such improvements, it is easy to see that he may in this 
way often become owner of the land as a compensation for his trespass 
upon it; and, although the legislature may not directly deprive the true 
owner of his land and give it to another, yet in this way they may do 
the same thing indirectly. 

“ It is not, however, now contended that this extended operation can 
be given to these acts, but that the legislature had the power to give 
the party an action at law for so much as he could before have obtained 
in a court of equity. This principle is undoubtedly correct, and is fully 
conceded by Judge Overton in Townsend v. Shipp’s Heirs, and is not 
denied by Judge Whyte in Nelson v. Allen and Harris. The only 
difference of opinion in those two cases is as to the extent of relief a 
court of equity would give a party who has made improvements on 
another man’s land. In the case of Townsend v. Shipp, the court held 
that, if one take possession of land under a title, believing the land to 
be his own, and under that belief makes improvements, equity would 
interpose in favor of such innocent possessor, and enjoins the claimant 
from taking possession until by the rents and profits the improver could 
compensate himself for his labor. This principle, Judge Whyte, in Nel¬ 
son v. Allen and Harris, utterly repudiates, and insists that equity will 


LAWS IMPAIRING CONTRACTS. 


163 


not sustain a bill for improvements by the occupant whether he have or 
have not notice of the true owner’s title; that no case showing such a 
precedent can be found, and that the court, in Townsend v. Shipp, were 
in error upon this subject in following the civil law-writers, who, he says, 
are not authority in our law, but are cited only as an ornament to dis¬ 
course, when they agree with the law. But Judge Whyte admits that 
courts of equity, in decreeing in favor of the owner for the rents and 
profits under special circumstances, will fix the time from which the 
account shall be taken so as to compensate the possessor for improve¬ 
ments. This, he says, is not on account of any meritorious claim in the 
possessor, but by way of subtraction from the plaintiff for neglect or 
default. 

“Take this to be the true principle upon which a court of equity acts, 
and it would follow that, as the possessor would be entitled, under par¬ 
ticular circumstances, to a diminution of the recovery for rents and 
profits, the legislature might give him an action to recover that directly 
which a court of equity would indirectly award. But, although we can 
not concur in the principle laid down by the court in Townsend v. Shipp, 
before referred to, to the whole extent there assumed, still we think 
the grounds assumed by Judge Whyte are too restricted. At the last 
term of this court, in the case of Jones and others v. Perry and others, 
10 Yerg., it was determined that Perry and Wheeler should be enti¬ 
tled to such improvements as bettered the condition of the estate, 
provided the value thereof did not exceed the value of the rents and 
profits. Further than this we are not disposed to go, aud, therefore, we 
are not of opinion that compensation for improvements beyond the 
value of the rents and profits cau be recovered.” 18, 478. McKinley 
v. Holliday. 1837. 

Present Law on this Subject Resulting from Confusion in Decisions 
Above Quoted. —In a note to Bristoe v. Evans and Campbell, 2, 352, Mr. 
W. F. Cooper, afterward one of the judges of the Supreme court, in his 
edition of Tennessee Reports, says that the Acts of Assembly reviewed 
in this case were considered in Townsend v. Shipp’s Heirs, Weatherford 
v. Bledsoe, 2, 392; Nelson v. Allen and Harris, 9, 3G1; McKinley v. Holli¬ 
day, and in the argument of counsel, if not by the Court, in Jones’ 
Heirs v. Perry. “After all which,” says Mr. Cooper, “the language of 
Judge Green is very much to the point when he says: ‘The subject of 
the constitutionality of these Acts of Assembly has been several times 
before this court, and, although they have been commented on very 
much at length, yet a definite and satisfactory adjudication has not 
been made.’ 

“ The result seems to be,” continues Mr. Cooper, “ that the acts could 
not be sustained according to their literal import, and that their only 
effect was to transfer the remedy for the value of improvements to the 


164 


TENNESSEE CONSTITUTIONAL LAW. 


court of law, and that recovery could be had only for so much as before 
could have been obtained in a court of equity. Upon this view the 
Code has only retained the provision giving to the possessor in good 
faith, under color of title, the right to set off the value of permanent 
improvements, against rents and profits, leaving to the parties, all their 
other remedies at law or in equity. Code 1858, 3259, 3261; Avent v. 
Hord, 40, 462.” 

In the case of Nelson v. Allen and Harris, referred to by Mr. Cooper 
as being one of the cases in which the constitutionality of these acts 
was reviewed, the constitutional question was not before the court for 
decision, according to Judge Catron and Mr. Cooper. Judge Whyte, in 
delivering the opinion of the court, did go into a very lengthy review of 
the acts and the previous decisions of the court, and said that the acts 
were unconstitutional (p. 385), but Judge Catron (p. 386) said: “The 
causes of Townsend v. Shipp, and Bristoe v. Evans and Campbell, I have 
no inclination to disturb; they having, as I think, however, no connection 
with the present cause; I see no reason for their examination or sanc¬ 
tion. I wish to be understood as giving no opinion as to the correct¬ 
ness or incorrectness of the principles decided by the foregoing cases, 
because there is no controversy before us on the subject to which they 
relate, to wit: the value of improvements, and the examination of the 
constitutional question presented by them would be gratuitous in this 
cause.” 

Says Mr. Cooper in a foot note (p. 386): “The only point actually 
decided, or important to be noticed, is the one embodied in the head 
note, as to which both judges were in accord.” Judge Whyte’s arguendo 
is omitted from this volume, the object of which is to present only the 
opinions of the court; but his views should not be thrown aside as 
unimportant, for he seems to have helped cause the confusion which 
resulted in leaving out of the Code the provisions of the acts, as referred 
to by Mr. Cooper. See T. & S., 3259, 3261; M. & V., 3990, 3992. 

In a note to Townsend v. Shipp’s Heirs, 3, 304, Mr. Cooper says that 
the result of these decisions is “ that the acts in question only changed 
the forum of relief, without altering its extent.” 

School Lands and Funds. 

Compact Between State and Federal Governments—History of Legis¬ 
lation on This Subject—Acts Directing Their Sale Void. — The legislature 
having, by resolution, requested the opinion of the court upon the power 
of the legislature to sell the school lands, the request was complied with 
in this case, Catron, J., delivering the opinion. He said: “By the Act of 
1825, ch. 85, the treasurers are instructed to sell the school lands. The 
complainants, . . . inhabitants of a township, filed this bill to pre¬ 
vent the sale. Tennessee acquired the land in controversy by the com- 


LAWS IMPAIRING CONTRACTS. 


165 


pact of 1806. It is, in substance, a deed of conveyance; an executed 
contract, the obligation of which the legislature can not violate. Does 
the Act of 1825 violate this compact? This raises the question, had 
Tennessee communicated to her the power and authority to sell the 
school sections, and part with the legal and trust estate? The United 
States might well vest in Tennessee, as a corporate body, the legal title to 
the lands, and still restraiu her from selling and conveying any part 
thereof. The contract itself must determine the nature of the title 
vested. To a correct understanding of the compact, much aid may be 
derived from the acts and policy of the Federal government in its dis¬ 
position of the lands ceded to it by the States. 

“In 1784 Virginia ceded to the United States her northwestern terri¬ 
tory, now forming Ohio, Indiana, and Illinois, save a fraction owned by 
Connecticut. In 1785 Congress passed the first law making regulations 
to dispose of the public lands. They were directed to be laid off in 
townships of six miles square, and these to be subdivided into thirty- 
six sections of a mile square. 

“Perhaps no act has ever been passed by Congress of equal prob¬ 
able influence upon the destinies of the American people. Upon it 
are based individual titles to a large portiou of this continent, destined 
to become, a few generations hence, as mighty in men and means as any 
country of equal extent on the globe; and it has surface enough for a 
splendid empire. The distinguished patriots who were of the Congress 
of 1785 foresaw this; they foresaw the necessity that a people making 
the experiment of self-government must be educated, least their rights 
should ere long fall a sacrifice to the military usurper or profligate dema¬ 
gogue; that the idea of self-government for auy length of time, by an 
illiterate mass of people, was not only improbable, but absurd; that 
illiterate men could not frame constitutions aud laws to govern them¬ 
selves by, or execute them when adopted; that they would not under¬ 
stand or appreciate them sufficiently for their preservation; nor would 
they have morals and elevation of character, the only basis of patriot¬ 
ism, to appreciate or preserve their freedom; that ignorance and 
depravity had been the handmaids to despotism through all ages past, 
and must be so through all ages to come; aud that when this mighty 
republic should fall, mainly to this cause would be traced its overthrow. 

“The Congress of 1785 was about to dispose of, and forever, the 
public domain, the population of which was presently to form a strong 
arm of the Union; a severance of this from off the body politic might, 
and iu all probability would, destroy it. The main pillar of the political 
edifice (the means of education) was then iu the power of Congress, and 
means, of all others the most permanent aud most likely to prove 
beneficial through time to come, lands of good quality and convenient 
locality. 


166 


TENNESSEE CONSTITUTIONAL LAW. 


“From its paramount importance, a provision for the promotion of 
education became a part of the settled policy of the government in the 
disposition of public lands. By the Act of 1785 it is provided 4 that 
there shall be reserved lot No. 16 of every township, for the maintenance 
of public schools within the township; also, one-third part of all gold, 
silver, lead, or copper mines to be sold or otherwise disposed of as Con¬ 
gress shall hereafter direct/ In the surveying and sale of all public lands 
the United States, from that time to this, have reserved the sixteenth 
section ‘for the maintenance of public schools within the township/ 

“In 1787, the justly-celebrated ordinance for the government of the 
northwestern territory was enacted by Congress. Amongst other 
things, it is declared ‘that religion, morality, and knowledge, being 
necessary to good government and the happiness of mankind, schools 
and the means of education, shall forever be encouraged in the territory/ 

“In 1789 North Carolina passed the Cession Act, transferring to the 
United States what is now the State of Tennessee. This was accepted 
by Congress in 1790. The fourth condition stipulates that the people of 
the ceded territory shall enjoy all the privileges, benefits, and advant¬ 
ages set forth in the ordinance for the government of the northwestern 
territory of the United States; that Congress shall never bar or deprive 
them, or any of them, of privileges which the people in the territory 
west of the Ohio enjoy. 

“Every promise set forth in the ordinance was part of our contract 
with the United States; one of these was, that schools and the means 
of education should be forever encouraged; not by words, but by useful 
means. We were to receive all the privileges and benefits the people 
northwest of the Ohio enjoyed. What did they enjoy? The sixteenth 
section of every township for the use of public schools, within the 
township. Thus the United States were bound, by contract, to furnish 
us the means of education, and that forever, and to reserve the sixteenth 
section for the use of public schools within each township. Upon this 
consideration, with others, did North Carolina part with the soil and 
sovereignty of the country. Suppose she had sold to individuals, would 
not a court of chancery have enforced this part of the contract in favor 
of the cestui que trust, the people of the ceded territory? It can not 
be denied. 

“Thus stood the rights of our people, and their claim upon the 
United States in 1806. By the compact of that year, to which the 
United States, Tennessee, and North Carolina were parties, amongst 
other things, it was agreed that the legal title to the lands northeast of 
a certain line be vested in the State of Tennessee; that 100,000 acres 
should be laid off in one tract, south of French Broad and Holston, for 
the use of two colleges to be established by the legislature; also 100,000 
acres in one other tract, for the use of academies, one in each county, 


LAWS IMPAIRING CONTRACTS. 


1G7 


to be established by the legislature. These lands, it was stipulated, 
should be subject to the disposition of the legislature of the State, but 
should not be granted or sold for less than two dollars per acre. ‘The 
proceeds of the sales shall be vested in funds for the respective uses 
aforesaid forever/ says the compact. 

“And the State of Tennessee shall, moreover, in issuing grants and 
perfecting titles, locate six hundred and forty acres to every six miles 
square in the territory hereby ceded, where existing claims will allow 
the same, which shall be appropriated for the use of schools, for the 
instruction of children forever. 

“The United States held the legal title to the lands referred to, sub¬ 
ject to the stipulations of the Cession Act of 1789; they were bound, so 
far as a sovereignty can be bound, to furnish the means of education, 
and forever; they were bound to furnish the sixteenth section, for the 
maintenance of public schools within the township. 

“Thus incumbered, the legal title was vested iu the State of Ten¬ 
nessee, with this positive further restriction, that Tennessee should 
locate one section iu every township, if so much ungranted land might 
be found therein, for the use of schools, for the instruction of children 
forever. The first duty of Tennessee was to elect the school section, if 
so much ungranted land was found iu the township; when elected, 
it was holden by the State in her corporate capacity, not to sell (Con¬ 
gress never communicated the power of alienation of the school 
sections), but to locate and hold in trust the land, and, as such trustee, 
to cause to be appropriated the land and the rents, issues and profits 
thereof, for the use of schools for the instruction of childreu forever, 
through all ages to come, whilst her corporate capacity endured. 

“Such is the plain language of the act; such is the undoubted infer¬ 
ence to be drawn from the context provision, authorizing the sale of the 
college and academy lands; such is the conclusion to be drawn from 
the obligation resting upon the United States by force of the Cession 
Act of 1789; such is the conclusion to be drawn from the construction 
given to the compact of 1806 by the legislature of Tennessee, from 1806 
up to 1825. For near twenty years it was not imagined the school 
sections could be sold. 

“In 1817 the legislature ordered formal grants to be made out for 
the school sections, reciting that in conformity to the compact of 1806, 
‘there is granted by the State of Tennessee, for the use of schools for 
the instruction of children, a tract of land situate, etc., which grant 
shall be sealed with the great seal of the State, shall be recorded by 
the register in the same manner as other grants issued by the State are, 
and shall be as effectual to vest the title to said lands for the use of 
schools forever, against any grant issued by the State of Tennessee/ 


168 


TENNESSEE CONSTITUTIONAL LAW. 


“As evidence of the nature of the trust reposed in Tennessee by the 
compact, and as evidence of the particular sections elected for the use 
of schools, no declaration could be more conclusive than the patent. 
It may vest in the inhabitants of each township, for which the land was 
located, a title in fee, not subject to be defeated by the legislature. 
That it was intended to do so, there can be little doubt. On this point, 
however, we wish not to be understood as giving any matured opinion. 
It is not probable the State intended to part with her powers over the 
school lauds as trustee, nor do we imagine she has done so by the Act 
of 1817. It is a public matter, and must be subject to legislative 
control. 

“We are of opinion that the Act of 1825 clearly violates the obliga¬ 
tions of the compact of 1806 imposed upon the State of Tennessee; and 
that the act, so far as it orders the school sections to be divided, sold 
and granted to purchasers, is unconstitutional and void. We therefore 
reverse the decree, overrule the demurrer, and remand the cause to the 
Chancery court to be proceeded in.” 10 , 537. Lowry v. Francis. 1831. 

Sale of School Lands Previously Leased is Unauthorized by Law.— 
Caruthers, J., held: “A sale of school lands previously leased is 
unauthorized by law, and the sale is void; and this is so, although the 
lease itself may be a nullity. By the Act of 1843, ch. 356, Congress 
authorized the State, upon certain conditions, to sell the school lands. 
The legislature, by the Act of 1844, ch. 104, amended by the Act of 1846, 
ch. 121, in pursuance of the power given by Congress, made provision 
for the sale of these lands. Under these acts certain school lands in 
Polk county were sold, and the sale confirmed; but before the sale was 
made, the school commissioners, under the Act of 1850, leased said 
lands for ninety-nine years. The sale was void, and communicated no 
title to the purchaser.” 38 , 173. 1 Goodman et al. v. Tennessee Mining 

Co. 1858. 

Common School Fund.— Nicholson, J.: “When the common school 
fund was placed in the bank to constitute part of its capital, it became 
assets of the bank, to which the creditors of the bank had a right to 
look, and that these constituted a trust fund applicable to the payment 
of the debts of the bank. The Act of the Legislature of 1866, which 
appropriated the assets of the bank as school fund, impaired the obli¬ 
gation of the contract between the bank and its creditors, and was, 
therefore, null and void—as was also the assignment made in pursuance 
of that act, so far as it gave preference to the school fund.” 64 , 6, 
2 State and Watson v. Bank of Tennessee. 1875. 


1 See 31 , 87. 


2 See same case, art. 11, sec. 12. 



LAWS IMPAIRING CONTRACTS. 


169 


Judgments and Judicial Proceedings. 

Legal Tender Clause of TJ. S. Constitution — Conditions that Led to 
its Adoption — Payment of Judgments in Bank Notes — Ex Post Facto 
Laws—Legislature Can Not Suspend Execution—May Alter Remedies.— 
The Act of 1819, ch. 19, sec. 1, directed that “no execution shall issue 
upon a judgment until two years after its rendition, unless the plaintiff 
shall endorse upon the execution that the sheriff may receive in satis¬ 
faction the notes of” certain banks. In this case it was contended that 
this act was in conflict with the Constitution of the United States, art. 1, 
sec. 10, as follows: “No State shall emit bills of credit; make auythiug 
but gold and silver coin a tender in payment of debts; pass any . . . 
ex post facto law, or law impairing the obligation of contracts . . . 
and that it was in conflict with the above clause of our State Constitu¬ 
tion. In delivering the opinion of the court, ! Judge Haywood, after 
reviewing at length the history of paper money and tender laws under 
the colonial governments, and the disastrous condition of the country 
resulting from the States continuing to issue paper money after the 
close of the revolutionary war, said: 

“Such were the unpromising circumstances which America had to 
deplore, and such the alarming disorders which were to be remedied by 
the convention. One of the most powerful remedies was the tenth 
clause of the first article, and particularly the two sentences which we 
are now considering. They operated most efficaciously. The new 
course of thinking, which had been inspired by the adoption of a Con¬ 
stitution that was understood to prohibit all laws for the emission of 
paper money, and for the making anything a tender but gold and silver, 
restored the confidence which was so essential to the internal prosperity 
of nations.” . . . 

“ These clauses, as they were not only necessary for the regulation 
of intercourse between State and State, and the citizens of each, to 
prevent the misunderstandings which were likely to arise from the pro¬ 
hibited causes, are equally so for regulating the intercourse of citizens 
of the same State with each other, were therefore considered as a fun¬ 
damental law of the Union, and also a part of the Constitution of each 
State. What was it to the State of Vermont if Georgia should pass an 
ex post facto law or bill of attainder which could operate only upon 
those within her own territory? The restriction was imposed upon 
Georgia, not for the sake of the people of Vermont, but for the benefit 


‘Original Note of Reporter.— “ Judge Whyte did not express an opinion when the above 
was delivered, but like motions having been made in the Supreme court of charlotte, that judge 
said he considered the question as settled, and joined in the orders. Subsequently, when Judges 
Brown and Peck came to the bench, they uniformly, on sundry motions to the same effect, con¬ 
curred in the above opinion ; so that the expression of five judges on the bench of the Supieme 
court has been iu accordance with this opinion.” Emmerson, J., concurred with Haywood, J., 
on all the points in this case. 



170 


TENNESSEE CONSTITUTIONAL LAW. 


of Georgia, and for fear of the tyranny which her own legislature, at 
some future time, might be tempted to exercise. A law, impairing the 
obligation of contracts, as it was equally injurious to citizens of the 
same State as to foreigners and citizens of other States, is equally pro¬ 
hibited as to all, and is not restrictive of State legislation only so far as 
regards citizens of other States. The Constitutions of the several States 
had left the power unlimited in their State legislatures. The framers of 
the Federal Constitution believed it to be of indispensable importance 
not to leave this power any longer in the hands of the State legislatures. 
Experience had demonstrated the baneful effects of its exercise. The 
known disposition of man excluded the hope that it would not be used 
for the same pernicious purposes in future. Under the smart of this 
experience, such were the feelings of the American people at the time, 
still suffering under repeated emissions of depreciated paper, that not 
a dissenting voice was raised against the clause before us. No State 
required it to be expunged, nor did any State propose an amend¬ 
ment. . . . 

“If the Constitution and laws of the Union make void such acts of 
the legislature, and we deem them valid, the debtor in this State will 
be bound to pay gold and silver to his creditor who lives out of the 
State; when, at the same time, his debtor within the State, who owes 
an equal amount, will pay in depreciated paper, perhaps of not half the 
value; and thus one debtor residing within the State will be ruined by 
the legalized unfaithfulness of another. And in our State courts the 
same words in the same clause mean one thing, but in the Federal 
court another. When part of the citizens are thus sacrificed to suit the 
convenience of another part, and when such sacrifices become habitual 
by the frequent exercise of a power which never lies dormant, after the 
acknowledgement of its existence, it will not be long before the perse¬ 
cuted portion will seek exemption from the wrongs it endures. Such 
are the tendencies which the convention meant to eradicate. Acts gen¬ 
erative of such tendencies are adverse to the spirit of this clause, and 
there is a repugnance between them and the Constitution. 

“We come now to a more minute examination of the acts in ques¬ 
tion. The creditor is denied execution for two years, unless he agrees 
to take paper. What the debtor can not tender, the creditor is not 
bound to receive. Whatever he is not bound to receive he can not be 
punished for refusing. The accessory is prohibited as well as the prin¬ 
cipal. Here the tender is not directly sanctioned. It is only said to 
the creditor, If you will not take paper, give up the means of getting 
anything at all for two years, with the prospect of still longer delay by 
repeated acts of the legislature. Take this paper which I have no 
right to impose upon you, or give up a right which I have no authority 
to take from you. Suspension of execution is a penalty, if, but for the 


LAWS IMPAIRING CONTRACTS. 


171 


act, the creditor would be entitled to it as a right attached to his ante¬ 
cedent contract; and it is a penalty prohibited by the tenth section now 
under consideration. If the legislature has power at this day to enact 
a suspension of execution for refusing to take paper, that section is 
abrogated. Two years may be extended to a hundred, and where is the 
difference between a direct injunction to take paper and the injunction 
to wait one hundred years, if he will not take it? Grant, for argument 
sake, that the right to execution is not an antecedent right attached to 
the contract, but a newly-created one, given by the legislature only 
upon condition, shall it be permitted so to frame the condition as to 
make it involve the relinquishment of a right secured by the Constitu¬ 
tion? By the latter the creditor is secured against paper mouey. Cau 
he be required to relinquish that security in order that he may become 
entitled to the benefit of this new-created right, to have execution? By 
such inventions every constitutional right may in succession be bartered 
away. Constitutional rights are vested, unexchangeable, and uualien- 
able. They belong to posterity as well as to the present generation. 
We may use and enjoy, but not transfer them; and every such condition 
is utterly void. If execution can be suspended on any condition, then 
the legislature has an absolute power to suspend it forever. How easy 
it is to invent a thousand conditions, with which no man in his senses 
would comply! If the right is newly created and the condition void, it 
must vest without the performance of the condition; and the result is, 
that if the right be antecedent, suspension is an unconstitutional penalty; 
if it be newly created, the condition is unconstitutional, and the right 
vests absolutely. In either alternative, the indorsement need not be 
made. 

“This conclusion follows upon a correct interpretation of the clause 
prohibiting tender laws. It equally follows a just interpretation of the 
sentence prohibiting laws to impair the obligation of contracts. . . . 

A grant made by the State, being an executed contract, can not be 
revoked by the legislature if pursuant to a law made by themselves; 
this point is so decided iu Fletcher v. Peck. With respect to executory 
contracts, it will be admitted without controversy that the terms and 
conditions of them can not be in any respect altered or interfered with 
by the legislature. 

“The time, place, person, or thing to be done, can not be changed 
by act of assembly. Covenants, sometimes by ex post facto circum¬ 
stances, become unreasonably burdensome. He that covenants to pay 
rent lor premises he never enjoys by the accidental buruiug of them, 
must nevertheless pay the rent. A man agrees to perform a voyage by 
sea under a penalty by way of stated damages for non-compliance, and 
he is hindered from an exact compliance by adverse winds, still he must 
pay the penalty. Iu these and all other cases ol contract, the legis- 


172 


TENNESSEE CONSTITUTIONAL LAW. 


lature can not interfere to make them more just or reasonable than the 
parties have made them. For thus no contract could be made that the 
parties might depend on for fear of the new modeling interposition of 
the legislature. Thus far is plain; but still the question remains, is the 
suspension of execution within the prohibition? Does an act to suspend 
execution impair the obligation of contracts made before it? What the 
obligation of a contract is may be discerned by considering what it is 
that makes the obligation. The contract alone has not any legal obliga¬ 
tion, and why? Because there is no law to enforce it. The contract is 
made by the parties, and, if sanctioned by law, it promises to enforce 
performance should the party decline performance himself. The law is 
the source of the obligation, and the extent of the obligation is defined 
by the law in use at the time the contract is made. If this law direct 
a specific execution, and a subsequent act declare that there shall not 
be a specific execution, the obligation of the contract is lessened and 
impaired. If the law in being at the date of the contract give an equiv¬ 
alent in money, and a subsequent law say the equivalent should not be 
in money, such act would impair the obligation of the contract. If the 
law in being at the date of the contract give immediate execution on 
the rendition of the judgment, a subsequent act, declaring that the 
execution should not issue for two years, would lessen or impair, the 
contract equally as much in principle as if it suspended execution 
forever; in which latter case the legal obligation of the contract would 
be wholly extinguished. The legislature may alter remedies; but they 
must not, so far as regards antecedent contracts, be rendered less 
efficacious or more dilatory than those ordained by the law in being 
when the contract was made, if such alteration be the direct and special 
object of the legislature, apparent in an act made for the purpose. 
Though, possibly, if such alteration were the consequence of a general 
law, and merely incidental to it, which law had not the alteration for its 
object, it might not be subject to the imputation of constitutional repug¬ 
nance. The legislature may regulate contracts of all sorts, but the 
regulation must be before, not after, the time when the contracts are 
made. . . . 

u Suspension of execution as directed by these acts of the legislature 
under consideration is forbidden by the prohibition of tender laws as a 
direct consequence of the prohibition; also by the interdiction to pass 
laws impairing the obligation of contracts, suspension of execution 
being on impairing of such obligation ” 7 , 9. 1 Townsend v. Townsend 
et al. 1821. 


1 See same case, art. 1, sec. 8, p. 45; art. 1, sec. 17, p. 113; and art. 1, sec. 20, p. 147. 



LAWS IMPAIRING CONTRACTS. 


173 


Surety for Costs—Discharge by the Court—Substituting Another— 
Competency as a Witness. — TURLEY, J.: “The first Cause of error 
assigned in this cause is that James P. Clark, who was original surety 
for the prosecution of the suit, was discharged by the court, and other 
surety taken in his stead, and he permitted to be examined as a witness. 
It is said that the court had not power to release him from his lia¬ 
bility incurred as surety for costs, and that he was therefore interested 
in the event of the suit and an incompetent witness. We do not think 
so. Surety for the prosecution of suits, appeals, and bail are taken by 
the officers of court under the provisions of the law, and it has always 
been the practice in this State, upon a proper case made out, to substi¬ 
tute other security in the place of the original; and, this beiug done 
under the inspection of the court, no harm can be done to the person for 
whose use the surety was given, as the court will be careful to take none 
but what is amply sufficient to secure the end designed. The exercise of 
this power is not a violation of the obligation of contracts under the 
provision of the Constitutions of the United States and the State of Ten¬ 
nessee. For there is no contract on the part of the person intended to 
be benefited by taking the surety. The law takes the surety to protect 
him from loss, and he has no right to ask more at the hands of the court 
than that this shall be done; he has acquired no right by a contract to 
hold any particular person liable, provided the court will substitute 
another who can equally protect him from loss. This question has been 
thus adjudicated in England and all the States of the Union where it 
seems to have been made; at least we have not been able to find an 
authority to the contrary.” 19 , 205. Craighead v. The State Bank. 
1838. 

Bond to Appear at Court—Change of Term by the Legislature.— 
Green, J., held: “The legislature has no power to extend the terms of 
the defendant's contract beyond the obligation he entered into when he 
made the contract. Thus where a recognizance is conditioned for the 
defendant's appearance at a particular term, and the legislature abolishes 
that term, and directs that the court shall be held at a subsequent term, 
the recognizance is discharged.” 23 , 227. 1 The State v. Edivards. 1841. 

This Provision Made in Light of Certain Principles of Law—Act Pro¬ 
viding Stay of Execution on Judgments and Decrees Previously Rendered 
—Binding Force of Contracts—Remedies—Case Overruled : Farnsworth 
v. Vance et al. —The Act of January 6, 1861, providing for a stay of exe¬ 
cution on all judgments and decrees in courts of record and before 
justices of the peace, was before the court on the question of its con¬ 
stitutionality. It was decided that the act impaired the obligation of 
contracts entered into before its enactment, aud was therefore uncon- 


1 See Meigs’ Digest, vol. 2, p. 890 ; 32 , 309. But see now T. S., 5155; M. & V., 5985, and 37 , 419. 



174 


TENNESSEE CONSTITUTIONAL LAW. 


stitutional. Freeman, J., with reference to the obligation of a contract, 
said: “Its binding force can neither be created, nor enlarged, nor modi¬ 
fied by laws passed by a legislature or any other power in a State; 
nor can it be released or broken, though it may be violated. It must 
remain eternally the same in its original and essential force. The 
framers of the Constitution did not intend to prohibit the States in this 
direction, or add additional strength to this element of the obligation by 
protecting it from laws that might weaken its force. It must be the 
other element of obligation that is the legal compulsion or obligement 
that grows out of a contract and makes a part of it, enters into it at 
the time it is made, that is intended to be protected and maintained in 
its full force and vigor by this language. 

“This is made certain by another view of the question, that the pro¬ 
hibition is against any State passing any law impairing the obligation of 
contracts. It is the action of law-making bodies that is thus restrained, 
and that of States. The law-making bodies of States, or law-enacting 
bodies, are the people in convention, or in legislative assemblies, and it 
is these bodies that are prohibited in the exercise of their functions to 
pass or enact laws, the one in the form of constitutional provisions, the 
other in the form of statutes or legislative enactments in the direction 
forbidden. It would seem clear then, that the prohibition being upon 
legislative or law-making bodies, that it should be referred to that 
which, without the prohibition, they were competent to do, and was 
within their legitimate sphere of action, that is, the impairing by law of 
an obligation created or imposed by law; or in other words, to affect 
injuriously the legal obligation or legal compulsion or obligement that 
makes a part of every contract. 

“ This, we think, is the principle that underlies the reasonings of the 
Supreme court of the United States in the great leading cases, on this 
subject, of Sturgis v. Crowninshield, 4 Wheat., and of Ogden v. Saunders, 
12 Wheat., 132; for, in the first case, Chief Justice Marshall, in delivering 
the opinion of the court, says, p. 197: ‘A contract is an agreement in 
which a party undertakes to do or not to do a particular thing. The 
law binds him to perform his undertaking, and this is, of course, the 
obligation of his contract. 7 That is, we add, it is the legal obligation 
with which the law-making power and the courts have to deal. He 
adds: ‘Where a party has given his promissory note, by which he 
promises to pay a sum of money on a certain day, the contract binds 
him to pay that sum on that day, and this is its obligation. Any law 
which releases a part of this obligation must, in the literal sense of the 
word, impair it. 7 Here in this last sentence the learned chief justice 
(with deference be it said) seems to fail to distinguish between the 
moral and legal obligation; for while the party is certainly morally 
bound to perform it on that day, and while the law equally recognizes 


LAWS IMPAIRING CONTRACTS. 


175 


the duty, it does not actually, by any of its machinery, oblige him to do 
so on that day, nor is there auy legal obligement or compulsion on him 
to do so, but only the right to bring a suit and have judgment in the 
future, and an execution to enforce the performance by sale of property 
for that purpose. 

“ We assume that the convention had this principle and view of the 
case in their minds when they framed this clause; that they were thor¬ 
oughly acquainted with our common law and knew its machinery for 
the enforcement of contracts, and meant that the legal obligation of 
contracts — that is, the legal means of enforcing them, which consti¬ 
tuted their legal obligation, or the legal obligement by which they were 
enforced—should not be impaired or weakened, or rendered less 
effective, than when the contract was entered into and the obligation 
imposed or taken upon the party.” 

After quoting at length from the opinion of Judge Washington in the 
case of Ogden v. Saunders, 12 Wheat., 239, Judge Freeman says: “We 
turn for a moment to the decisions of our own courts, where the same 
views were at an early day adopted, and presented in an opinion of 
great ability in the case of Townsend v. Townsend. The court in that 
case hold the principle to be in substance: ‘That the legislature may 
alter remedies, but they must not, so far as regards antecedent con¬ 
tracts, be rendered less effective or more dilatory than those ordained 
by the law in being when the contract was made, if such end be the 
direct and special object of the legislature apparent in an act for the 
purpose.’ . . . Such was the uniform holding of our courts until 

the case of Farnsworth and Reeves v. Vance and Fleming. That case goes 
on the principle, ‘that the legislature may, in their discretion, vary the 
nature and extent of the remedy so that always some substantive 
remedy in fact be left’ (2 Col., 117), but leaves out the important quali¬ 
fication that it shall be equally efficacious as the one in existence at the 
time of making the contract. 

“We think perhaps the true principle is more properly stated thus: 
That the legislature have complete control over the form of the remedy, 
the mode of proceeding by which the legal obligation is enforced; and 
in all that pertains to this may alter, change, or modify its laws as dis¬ 
cretion may dictate. For instance, where the existent remedy at the 
time was debt, it may chauge it to assumpsit; or if assumpsit , may 
change it to debt; or, as in our Code, may give an action simply on the 
facts of the case; but then in no case can it by direct enactment for 
that purpose, nor even by indirection, where such is the purpose, render 
the remedy essentially less effective for enforcement of the obligation 
to which the party has bound himself by his agreement. 

“If the legislature can enlarge the time one day in which the party 
is to perform what the legal obligation of his contract requires at the 


176 


TENNESSEE CONSTITUTIONAL LAW. 


time it is entered into, it may do it for a hundred days; and if for this 
period, then it may equally well do it for a hundred years. There can 
be no difference in principle in the one case from that of the other; 
and thus the legal obligation is not only impaired, but practically 
destroyed. Can this tremendous power be fairly held to lurk within the 
principle of legislative power over the remedy tor enforcement of a 
contract? We think not. ... We can not approve the reasoning 
or conclusions of that case, (Farnsworth v. Vance), and overrule it, 
adopting what we think was the uniform current of judicial opinion in 
Tennessee before that case, as the sounder rule.” 53, 97. Webster v. 
Mann and Bose. 1871. 

Act for Relief of Debtors—Remedies—Power of the Legislature to 
Alter.—N icholson, J.: “The Act of 1861, ch. 2, is entitled ‘An act pre¬ 
scribing the remedy for the collection of debts and relief of the people.’ 
It expired by its own limitation, on the 1st day of July, 1862. The 
general object of the act was to stay the collection of all judgments, 
rendered by courts or justices, for definite periods, upon new or addi¬ 
tional securities to be given by judgment debtors. The conclusion of 
the third section provides as follows: ‘In order to constitute the levy 
on real estate valid as to proceedings before a justice of the peace, the 
execution shall be registered in the register’s office of the county where 
the land lies.’ The circuit judge (Elijah Walker) held this provision to 
be unconstitutional, as it obstructed and embarrassed the creditor’s 
remedy, which existed by law, at the time his judgment was rendered. 

. . . The judgment in the present case had been rendered before the 
passage of the Act of 1861. At that time, the judgment creditor had 
the right, under the law, to have his execution levied on the debtor’s 
land, and thereby to secure a lien which could be rendered available by 
returning the paper to the Circuit court, and procuring an order of sale. 
The Act of 1861 undertook to change this remedy, by requiring the 
execution, when levied, to be registered, and thereby securing the lien, 
but making no provision for enforcing this lien. It was manifestly 
intended as an act for the relief of debtors, by giving time on judg¬ 
ments rendered against them. There was, therefore, no error in the 
holding of the circuit judge.” 63, 521. McClain v. Easley. 1874. 

Vested Rights — Liabilities — Remedies. 

Deeds of Trust Made Before Passage of Act — Future Contracts — 
Remedy.— In September, 1850, plaintiff purchased from McCombs, trus¬ 
tee, the house and lot in question, recovered a judgment in an action of 
ejectment against defendant, and was put in possession of the property 
in February, 1852. In April, 1852, this suit for mesne profits was insti¬ 
tuted. In August, 1852, the defendant redeemed the property from 


LAWS IMPAIRING CONTRACTS. 


177 


said sale, according to the ’Acts of Assembly, 1820, ch. 11, sec. 2, and 
1823, ch. 24, sec. 2. The question was whether plaintiff was entitled to 
mesne profits. . . . Totten, J. : “ For the defendant it is urged that 

the Act of February, 1850, ch. 121, applies to the case, and that under 
its provisions the defendant is not liable for mesne profits. It declares 
‘that in all sales of land or real estate hereafter to be made under 
execution or deed of trust, which by existing law is subject to redemp¬ 
tion, if the debtor is permitted by the purchaser or his assignee to 
remain in possession, the debtor shall not be liable for rent from the 
date of the sale to the time of redemption; and if the purchaser, or 
his assignee, shall take possession under his purchase, upon the redemp¬ 
tion by the debtor, he shall be entitled to a credit for the fair rent of 
the premises during the time they were in the possession of the pur¬ 
chaser. 7 Now, the sale was after this act became a law, and there is no 
question but that it expressly applies to the case. But the deed of 
trust, by virtue of which the sale was made, was an existing contract 
when the law was passed, it having been executed before that time. 
And it is argued by the plaintiff's counsel that the law operates upon 
the contract; that it impairs its obligation and effect, and that it is, 
therefore, repugnant to the Constitution of the United States, which 
provides that no law impairing the obligation of contracts shall be 
made. To illustrate and support this position numerous cases are cited. 
Benson v. Kinnie, 1 How., 311; Gaity's Lessee v. Ewing, 3 Id., 716; Pool 
v. Young, 7 Mon., 587; Townsend v. Townsend. 

“As to existing contracts, it is a settled doctrine that the legislature 
has power over the remedy, but no power over the contract. That is 
secured and protected under the sanction of the Constitution. . . . 

This law takes from the purchaser a right and benefit which he had 
before, and confers upon the debtor a right and benefit which he had 
not before, under the mortgage. The use, the rents and profits for the 
two years limited for the redemption are taken from the purchaser and 
given to the debtor. The effect, then, is to reduce the value of the 
estate to the purchaser—that is, to reduce the value of the estate 
in market, and of course reduce the fund its sale will produce, which 
fund is the only thing in which the creditor has a beneficial inter¬ 
est under the mortgage. The contract is, therefore, impaired to this 
extent, to the prejudice of the creditor, and if the estate be, as it often 
is, an inadequate security for the debt, it is a positive loss to the cred¬ 
itor to the extent of the value thus taken from the purchaser and given 
to the debtor. It is no answer to say that the purchaser takes the 
estate in view of the law. That is true. But as he takes a less interest, 
he will give less for it, and it is in this diminution of the fund that the 
security is impaired and the creditor injured. The contract is to be 


1 Code 1868, 2135; T. & S., 2135; M. & V., 2958. 


12 



178 


TENNESSEE CONSTITUTIONAL LAW. 


construed by the laws existing at the time it was executed, and not by 
the laws made after its execution. Those laws that give force and 
effect to the contract are incorporated in it and form part of it. Thus, 
the right to redeem is not stated in the deed; that provision is supplied 
by the law applicable to such contract. But subsequent legislation can 
never be permitted, without gross violation of reason and common 
right, to interpolate terms and provisions on the contracts of parties to 
which they did not consent. As to the remedy, we do not perceive 
that this law has any effect upon it. The procedure is the same, the 
mode of sale is the same, but it is the effect of the sale that is not the 
same. We are of opinion, then, that this law ( impairs the obligation of 
the contract 7 in question; and being, therefore, repugnant to the Con¬ 
stitution, the law must be held and deemed inoperative as to the said 
contract. The sale under the mortgage must be construed to have the 
same force and effect, as to the rents and profits, as if the law had not 
been made. As to mortgages and deeds of trust made since the law 
was passed, they will be construed and governed by it. For there is no 
question as to the power of the State to declare the force and effect of 
future contracts made and to be executed in it. This is an unrestricted 
legislative power, to be exercised at discretion for the public advantage. 
The restriction is limited to contracts existing at the time the law is 
passed; as to them, they are protected by the Constitution, and can not 
in any degree be violated or impaired.” 33, 549. Greenfield v. Dorris. 
1853. 

Suit Brought Against the State Under One Statute Not Affected By 
Subsequent Statute.— School lands, held in trust by the State under an 
Act of Congress, having been sold under a law subsequently declared 
unconstitutional and void by the courts, the legislature authorized suit 
to be brought against the treasurer of the State for the purpose of 
ascertaining the rents and profits of the land and interest thereupon, 
and suit was brought accordingly, after which the legislature enacted 
that the claimants should recover under the previous act “ the amount 
received by the State for the rents of said land, and no more.” Turley, 
J., held: “The last act would not affect the recovery under the previous 
act.” 26, 114. School Commissioners v. The State. 1846. 

Laws Exempting Property.— Burton, Sp. J., held: “Laws extending 
the exemption of property from levy and sale under executions against 
the owner can not affect existing contracts.” 61, 148. 1 Harris v. 

Austell. 1872. 


1 Meigs’ Digest, vol. 2, p. 890. See Hannum v. Mclnturff, art. 11, sec. 11; also, 66 384-1 Lee 
Rep., 37 and 334. 



LAWS IMPAIRING CONTRACTS. 


179 


Public Printer a Public Officer — Legislature May Discontinue Office — 
Repeal as Affecting Rights. —On March 21, 1873, an act was passed by 
the legislature repealing those provisions of the Code which created the 
office of public printer, and providing for his election, but with a 
proviso that “this act shall in no way affect the rights and duties of 
the present public printers.” Afterwards, an act, taking immediate 
effect, was passed, authorizing the Secretary of State, etc., to award the 
public printing to the lowest bidder, etc. On March 25, 1873, an act 
was passed requiring the assessor to furnish tax lists to certain persons, 
and making it the duty of the comptroller to furnish the clerks of the 
County courts the printed forms for listing, to be distributed by the 
clerks to the assessors, etc. Nicholson, J., held: “The public printer 
is an officer of the State, but since the contracts designed to be pro¬ 
tected by sec. 10 of the first article of the Constitution are contracts 
by which perfect rights, certain, definite, fixed, private rights of prop¬ 
erty are vested, it follows that Jones, Purvis & Co. held the office of 
public printers as a public trust, subject to the power of the legislature 
to discontinue it at any time, or to be resigned at their pleasure at any 
time by them, and not as a contract protected from impairment under 
the Constitution of the United States. From the date of the repealing 
act they ceased to be officers of the State, and could claim no rights 
accruing after the date of the repealing act. The repeal, however, could 
not affect any rights which had vested before their office was abolished. 
These would be protected by the Constitution of the United States, and 
these are the only rights intended to be protected by the proviso to the 
second section of the repealing act.” 63, 113. Jones , Purvis & Co. v. 
Hobbs et al. 1874. 

Corporations—'Statute Construing Void Charter. —The question here 
was the validity of the Acts of 1890 (ex. sess.), ch. 17. Caldwell, J., 
held: “A statute curing a defective acknowledgment that rendered a 
corporate charter void, and thereby defeating an existing liability of 
the corporators under the contract of the company, does not impair 
any contract obligation of the other parties to the contract. ... A 
law which facilitates the intention of the parties to a contract by 
removing its invalidity does not impair any vested right ” Wilkes, J., 
dissented. 94 , 123. Shields v. Clifton Hill Land Co. 1894. 

Divorce—Right to Property Acquired by Marriage.— CATRON, J., held : 
“While the legislature exercised the power of granting divorces, its acts 
of separation could not divest the parties of the rights to property 
acquired by the marriage. So, the wife was entitled to alimony after 
such separation, just as she would have been had the separation been 
decreed by a judicial sentence ” 16, G7. 1 Richardson v. Wilson. 1835. 


1 18 , 200, Wilson v. Wilson. 1836. Meigs’ Digest, vol. 2, p. 890. 



180 


TENNESSEE CONSTITUTIONAL LAW. 


Act of 1831 Abolishing Imprisonment for Debt.— TtIRLEY, J., held: 
“The right to imprison a debtor is no part of the contract, and an act 
of the legislature abolishing the use of the writ of capias satisfaciendum 
is constitutional and valid.” 23, 14. Woodfin v. Hooper. 1843. 

Taxes — Payment in Paper Not Legal Tender—Bank of Tennessee 
—Agreement to Receive Paper in Payment of Taxes Due the State — 
Section 28 of Charter a Contract With State.— DAVIS, J., held : “A State 
may, in the charter creating a bank, agree to receive the paper of the 
bank for all taxes due the State. Such a contract is binding on the 
State, and within the protection of the Constitution of the United States. 
Courts do not favor repeals by implication, and never sanction them if 
the two acts can stand together. The State had the right at any time 
to withdraw its guaranty, but it must be done in such a manner as not 
to impair the obligation of its contract with the noteholders of the 
bank. The guaranty attached to the paper itself, and could not be with¬ 
drawn from it; and notes in circulation at the time of the repeal of the 
act are not affected by it, and carry with them the pledge of the State 
to be received in payment of taxes by every bona fide holder. Section 
28 of the charter of the Bank of Tennessee, constituted a contract with 
the holders of the notes of the bank, and it was not in the constitu¬ 
tional power of the legislature to repeal the section so as to affect the 
notes which, at the time, were in circulation.” 75, U. S., 44-64. Fur¬ 
man , Green & Co. v. Nichol, Clerk. 1869. 

Obligation of Contract—Not Impaired by Laws Prohibiting Receipt 
of New Issue Bank of Tennessee Notes for Taxes.— NICHOLSON, J., held: 
.“There is no obligation on the part of the present State government to 
receive the notes of the bank issued after the inauguration of the rebel 
State government in payment of taxes due to the State. For, although 
as between the bank and the holders, these notes are valid and pro¬ 
tected from impairment through hostile State legislation, by the Federal 
Constitution, yet section 12 could only have been operative upon the 
bills or notes emitted during the existence of the illegal State govern¬ 
ment through the re-enactment or tacit recognition thereof, by such 
State government, which had no power to commit the State to the terms 
of the contract imposed thereby for a period longer than its own exist¬ 
ence. It was therefore competent for the restored State government to 
repudiate these notes, so far as its liability to take them for taxes was 
concerned, the guaranty of the illegal State government not having 
been under the protection of the Federal Constitution.” 68, 472. l State 
ex rel. Bloomstein v. Sneed. 1876. 


1 See same case, art. 1, sec. 17, p. 127. 



LAWS IMPAIRING CONTRACTS. 


1S1 


Bank of Tennessee — Torbett Issue—Tennessee—Acts Binding During 
Period of Rebellion, Except When Done in Aid of that Rebellion, Etc.— 
This case was decided, Special Judge Josiah Patterson delivering the 
opinion of the court, reported in 72 , Tenn., p. 718. On appeal to the 
Supreme court of the United States, the opinion of the Supreme court of 
Tennessee was overruled and the case reversed. Miller, C. J., held: 
u The State of Tennessee having organized in 1838, the Bank of Tennessee, 
agreed by a clause in the charter to receive all its issue of circulating 
notes in payment of taxes, but by a constitutional amendment adopted in 
1865, it declared the issues of the bank during the insurrectionary period 
void, and forbade their receipt for taxes. Held that this was forbidden by 
the constitutional provision against impairing the obligations of contracts, 
There is no evidence in this record that the notes offered in payment 
of taxes by plaintiff were issued in aid of the rebellion, or on any con¬ 
sideration forbidden by the Constitution or laws of the United States, 
and no presumption arises from anything of which this court can take 
judicial notice. The political society which in 1796 was organized and 
admitted as a State into the Union, by the name of Tennessee, has 
retained the same body politic to this time. Its attempt to separate 
itself from the Union did not destroy its identity as a State, nor free it 
from the binding force of the Federal Constitution. Being the same 
political organization during the rebellion, aud since, that it was before, 
an organization essential to the existence of society, all its acts, legisla¬ 
tive and otherwise, during the period of the rebellion, are valid and 
obligatory on the State now, except where they were done in aid of that 
rebellion, or are in conflict with the Constitution and laws of the United 
States, or were intended to impeach its authority.” Justices Waite, 
Bradley and Harlan disseuted. 97 , U. S., 454. 1 Keith v. Clark. 1878. 

Rights of Creditors Acquired Under One Act Can Not be Divested 
Under a Subsequent Act.— Deaderick, J.: “In this case the receiver 
and back tax collector for Memphis, appointed under chapter 92, Acts 
of 1879, applied for instructions of the Chancery court at Memphis. In 
his petition or application for instructions, he represents that the Act 
of March 23, 1883, amending section 5 of chapter 92 of the Act of 1879, 
and the Act of March 27, 1883, which makes the indebtedness due 
policemen, firemen, and other employees for 1878, and January, 1879, 
receivable for the general taxes of 1875 and 1876, materially modify the 
character of indebtedness receivable for back taxes. ... In the 
case of Memphis v. United States, 7 Otto, 293, it was held‘that the 
relator had acquired a vested right by his judgment, and his alternative 
writ of mandamus to have a tax levied sufficient to pay the debt due to 
him from the city; a right of which he could be deprived by no subse- 


See 76 , 703: 78 , 471. 



182 


TENNESSEE CONSTITUTIONAL LAW. 


quent act of the legislature. We do not deny/ the court adds, ‘that 
it is competent for a legislature to repeal an act which, when it was 
passed, was a mere gratuity, if, while it was in existence, no vested 
rights have been acquired under it, or by virtue of it.’ The right which 
the relator had was conferred by the act of the legislature of this 
State, passed in 1873. He obtained judgment, and pursuing his remedy 
under said act, issued the alternative writ of mandamus , and the day 
after its issuance the act of 1873 was repealed, and it was held that 
when the alternative mandamus was issued, a proceeding was com¬ 
menced under and by virtue of the statute, and the repealing act was 
inoperative and void, so far as it undertook to take away the rights the 
relator had, ‘in force of his judgment. 7 ” In accordance with the above 
cited authority, the Acts of 1883 were declared inoperative and void. 
79, 493. The State for use etc. v. Butler et at. 1883. 

Private Corporations—Powers in General. 

Power to Charter Corporations an Incident of Sovereignty—Banking 
a Common Law Right, Until Restrained by Act of 1827—Exclusive 
Privileges—Discounting Notes at 7 Per Cent—Not Usury—Law of the 
Land—Art. ll, Sec. 2.— Totten, J.: “By the charter of the Union Bank 
of Tennessee (1832, ch. 2, art. 11), it is provided that paper having over 
ninety days and under six months to run to maturity may be discounted 
at the rate of 7 per cent per annum. If this provision in the charter 
be valid under the Constitution, there is no usury in this case; if invalid, 
there is usury to the extent of one per cent, as charged in the bill; and 
this is the question which we are to consider. The counsel for the 
plaintiff, in stating their argument, say that by the general law (1819, 
ch. 32) in force now, and at the date of said charter, the legal rate of 
interest is six per cent per annum; to take a greater sum is a public 
offense, punishable in a legal proceeding. That under the Constitution 
no one’s rights can be taken or affected ‘but by the judgment of his 
peers or the law of the land / by which is meant a general public law, 
equally binding, in like circumstances, on every member of the com¬ 
munity. That the bank has taken a greater rate of interest than others 
can take under the general law; and that its charter, permitting it to 
do so, is a partial law , and therefore, repugnant to the Constitution. 
In considering this question it may be observed that the power to grant 
corporations is an incident of sovereignty, and belongs to every sovereign 
State. With us it is exercised by the legislature, and it may lawfully 
confer upon the corporators any rights and privileges it may deem 
proper and expedient, not inconsistent with the Constitution of the 
Union or the State. In the present case, the act of incorporation 
creating a bank confers upon it such rights and privileges as was 
deemed necessary and proper for the success of the institution. . . . 


LAWS IMPAIRING CONTRACTS. 


183 


“It is not like an ordinary law prescribing a rule of action, which 
should be general in its nature, but is a law in the nature of a contract, 
granting a franchise to the corporators, and investing them with a legal 
estate therein. It must, of necessity, be limited and restricted in its 
operation to the persons to whom the franchise is intended to be granted, 
and denied to others. Yet, it can not be deemed a partial law in the 
sense of the Constitution, and repugnant to its provisions. We may 
observe that the business of banking was a common-law right, which 
any person, at his discretion, might lawfully exercise, until it was 
restrained by the Act of 1827, upon considerations of public policy and 
convenience. Ohio Ins. Co. v. Merchauts’ Ins. Co., 11 Humph., 23. That 
law operates as a general prohibition against the exercise of this right, 
except where it may be granted as a franchise to natural persons or 
incorporated companies. But it has never been considered that the laws 
containing these exclusive privileges of banking are repugnant to the 
Constitution as not being l laws of the land ’ of general application. A 
right to take a greater interest than is allowed by the general law is a 
part of the franchise granted to the company, and for its validity must 
depend upon the same principle as that upon which the corporation 
itself depends—that is, the inherent power of the State to make the 
grant. The right to take a greater interest is an exclusive grant, denied 
to others; and so the right to pursue the business of banking is in 
virtue of an exclusive grant, denied to others; and if the one be repug¬ 
nant to the Constitution, on the ground that it is not a general law, or 
l law of the land ,’ so must be the other. But we have seen that a law 
creating a corporation and granting a franchise is more in the nature of 
a contract than a 1 law of the land ,’ in the sense of the Constitution. 
The one is public, general, and equal in its operation, and subject to be 
altered or repealed at the will of the legislature; while the other is 
special, exclusive, and unequal in its operation, and being in its nature 
a contract, is not subject to the will or action of the legislature. In a 
word, the one is a public law, the other a legislative grant. And we may 
observe that in England corporations are created and may exist by 
royal charter merely, as well as by legislative grants. 2 Kent, 276. 

“There was nothing in our State Constitution at the date of defend¬ 
ant’s charter (1832) which declared that interest shall be at a uniform 
rate. This provision is contained in the reformed Constitution of 1834, 
and being general and imperative in its terms it is apprehended that no 
law or grant of a franchise can have a legal existence which stands in 
opposition to it. But it can have no application in the present case, it 
being of a date subsequent to the grant of the charter; and, besides, it 
contains a provision that nothing in it shall impair the validity of 
existing contracts.” 33, 118. Hazen v. Union Bank of Tennessee . 
1853. 


184 


TENNESSEE CONSTITUTIONAL LAW. 


Original Charter Granted to New Corporation and New Charter 
Granted to Old Corporation — Difference — Changes in Charter — Accept¬ 
ance by Majority and by Whole Number of Corporators. — MILLIGAN, J.: 
“The contract, or charter after acceptance, is inviolable between the 
State and the corporation, as it is, also, between the corporation and 
stockholders. Neither the one nor the other can disregard its obliga¬ 
tions, or alter its essential franchises, without the unanimous concur¬ 
rence of the stockholders. A corporation already in being, and acting 
either under a former charter or prescriptive usage, which accepts a 
new charter before the expiration of the old, may still act under the 
former, or partly under the one and partly under the other. Rex v. 
Cambridge, 3 Burr., 1656, 1663; Ang. & Ames on Corp., 650. In this 
respect there is a vast difference between an original charter granted to 
a new corporation, and a new charter granted to an old corporation. 
In the former case the charter must be accepted in toto, or not at all; 
but in the latter, the corporation may act partly under both the new 
and the old charters. In The King v. Passmore, 3 T. R., 246, Lord Kenyon 
says that ‘an existing corporation can not have another charter 
obtruded upon it by the crown. It may reject it, or accept the whole, 
or any part of the new charter/ The reason is obvious. A charter is 
a contract, to the validity of which the consent of both parties is essen¬ 
tial, and, therefore, it can not be altered or added to without such 
consent. 

“On the other hand, the State possesses over all corporations a sort 
of regulatory power by which the legislature may, if the corporation 
be a public corporation, under proper limitations, change, modify, enlarge 
or restrain its franchises, securing, however, at all times the property 
to the use of those for whom it w^s purchased. Ang. & Ames on Cor¬ 
porations, 650-1; Dartmouth College v. Woodward, 4 Wheat., 463; 
2 Kent’s Com., 352. But if it be a private corporation, whether civil or 
eleemosynary, which, in the great case of Dartmouth College v. Wood¬ 
ward, has been held to be an executed contract; and within the mean¬ 
ing of the tenth section of article first, of the Constitution of the United 
States, the legislature can not do more than pass such amendments to 
the charter as are merely ancillary to the main design of the corporation. 
It can not repeal, impair, or alter the rights and privileges conferred by 
the charter against the consent, and without the default, of the corpo¬ 
ration judicially ascertained and declared. 2 Kent’s Com., 352; Red- 
field on Railways, sec. 56, sub-sec. 7, and note; also Stephens v. Rutland 
& Burlington Railway, 1 Law Rep., 154. In such case, if the alterations 
proposed in the charter of a private corporation, by legislative enact¬ 
ment, are merely auxiliary and not fundamental, they may be accepted 
by a majority of the corporators; and when so assented to, they are 
binding on the whole; but it is otherwise, as we have already shown, 


LAWS IMPAIRING CONTRACTS. 


185 


when the alterations are fundamental, radical and vital, the acceptance 
must then be unanimous.” 43, 498, Woodfolk v. The Union Bank et al. 
1866. 

Water Company — Exclusive Privilege a Contract.— “On the 28th of 
February, 1870, the legislature granted a charter of incorporation to 
the Memphis Water Company for the purpose of supplying water to the 
city of Memphis, and the inhabitants thereof, by means of public 
works. . . . After the water company entered upon the construc¬ 
tion of its waterworks under its charter, the city of Memphis com¬ 
menced to erect waterworks for the purpose of supplying the city and 
its inhabitants with water, and proceeded to erect the same on its own 
account, in violation of the provisions of the charter of the water com¬ 
pany, which declares that the privileges granted it are exclusive for the 
period of thirty years, claiming that the city has the right to do so 
under the city charter, which the water company, on its part, denies, 
and insists that the action of the city is an invasion of its rights under 
its charter.” 

Nicholson, J.: “The Memphis Waterworks Company is a private 
corporation, and upon the acceptance of its charter by the corporators, 
and their organization under it, a contract was thereby consummated 
between the State and the corporators which was beyond the reach of 
subsequent legislative interference. It is conceded that by its express 
terms the privilege granted to the Memphis Water Company for thirty 
years is exclusive. What provision of the Constitution forbids the 
granting of a charter with an exclusive privilege? The legislature has 
the right to do whatever is not expressly, or by necessary implication, 
forbidden by the Constitution. 8 Hum., 1; Cooley’s Const. Lim., 87, 
158, 173.” 52, 526. 1 City of Memphis v. Memphis Water Co. 1871. 

Statutory Regulation of Corporations Chartered by Special Acts. 

Railway Charter—When it May be Altered or Repealed. — McFar- 
land, J.: “The charter of the petitioner was granted by the same 
legislature that enacted the Code of 1858, and there are some slight 
discrepancies between the mode of procedure pointed out by the 
charter for this proceeding, and the general provisions on that subject 
in the Code. 2 These discrepancies relate principally to matters of form, 
and are in no respect essential. We are to be governed, we think, by 
the general law. The provisions of the charter, in the parts referred 
to, are not in the nature of a contract that may be considered as 
impaired by the subsequent general provisions; and, besides, there is 


1 See same case, art. 1, sec. 22; art. 2, sec. 17; 

ait. 11, sec. 8. 


* T. & s., 1325 et seq.; M. & V., 1549 et seq. 



186 


TENNESSEE CONSTITUTIONAL LAW. 


nothing to show that the charter had been accepted, or acted upon, 
before the general provisions were passed.” 59, 55. Miss. R. R. Co. v. 
McDonald. 1873. 

Corporations Subject to General Regulations for Good Government 
and Rights of Individuals—General Banking Act of 1859-60—Transfer 
of Bank stock.— Deaderick, J.: “ While it is true the State may not 
impair the obligation of a contract or take from the corporation any 
essential right, which is conferred by the charter, yet it has been held 
that this inhibition against impairing the obligation of contracts, does 
not so far remove from State control the rights and properties which 
depend for their existence or enforcement upon contracts as to relieve 
from the operation of such general regulations, for the good government 
of the State, and the protection of the rights of individuals, as may be 
deemed important. All contracts and all rights are subject to this 
power, under the police power of this State. Cool. Const. Lim., 574. 

. . . 27 Yt., 140, and Thomp. Liability of Stockholders, sec. 65, citing 

a number of cases. 

“In this case the act of the legislature is a general law, applying 
expressly to all banks already chartered and those thereafter to be char¬ 
tered. It does not assume to take away the power to assign stock, but 
simply to regulate its transfer; imposes no new obligations or restric¬ 
tions, but prescribes the conditions upon which the original stockholders 
might assign their stocks, and if in the cases of railways and ferries 
the legislature might impose obligations not specifically required in the 
charters of the company involving the outlay of money, and to that 
extent an injury, we see no reason why the legislature may not, when 
the public good requires it, regulate the transfer of stock. In this case 
the new organization was had after the enactment of the banking law, 
and with knowledge of its provisions.” 72, 584. Marr v. Bank of 
West Tennessee 1880. 

Exemptions From Taxation by Special Contract. 

State Constitution Has No Power to Violate Obligation of Contracts — 
When Laws Imposing Taxes Other Than Those Named in Charter Are 
Invalid — Charter by Special Act a Contract.— The State granted the 
bank a charter, by a section of which it was stipulated “ that in consid¬ 
eration of the privileges granted by the charter, the bank agrees to pay 
annually one-half of one per cent on the amount of the capital stock 
paid in by stockholders other than the State.” By virtue of the sup¬ 
posed requisitions of the Act of 1836, chs. 13 and 14 of the public acts, 
a tax of five cents for the State and ten cents for the county on each 
one hundred dollars of capital stock paid in the bank was assessed in 
Davidson county. It was contended by the defendant that they were 
exempt by their charter from taxation; also, that the legislature, by 


LAWS IMPAIRING CONTRACTS. 


187 


the charter granted, made a contract with the bank that no other tax 
should be assessed, in consideration of the annual payment of one-half 
of one per cent, and that any law imposing a tax upon the bank would 
be in violation of both the Constitution of the United States and that of 
Tennessee. 

Turley, J. : “ Under this constitutional provision and legislative 
enactment the tax thus assessed is now sought to be collected from the 
bank. The first question which is presented is whether, if the construc¬ 
tion which the attorney general of the State contends for should be 
given to the clause in the amended Constitution and to these acts of 
the legislature be correct, their provisions are not, as far as the Union 
Bank and Planters 7 Bank are concerned, incompatible with that part of 
the Constitution of the United States which provides that ‘no State shall 
pass any law impairing the obligation of contracts. 7 Art. 1, sec. 10, 
Const. U. S. Ever since the determination of the great case of the 
Trustees of Dartmouth College v. Woodward, 4 Wheat., 518, it has been 
considered as settled beyond controversy that a charter of incorporation 
is a contract, and that any statute altering it in a material respect, 
without the consent of the corporation, is a law impairing the obliga¬ 
tion of the charter, and is unconstitutional and void. 

“It has not been contended that a convention of the sovereign 
power of the State could, by an amendment of the Constitution, do 
that which, by the Constitution of the United States, the legislature is 
prohibited from doing; neither, in our opiuion, could it have been suc¬ 
cessfully contended for, for a contract, once made, is obligatory upon 
the parties thereto, in morals and in law, until it has been performed 
according to its spirit and meaning. We repudiate the idea that a con¬ 
vention of a State has more power to violate contracts than the legis¬ 
lature. If it were otherwise, there would be no safety in times of 
excitement, under our form of government, for the most sacred rights. 
The question, then is, does a law imposing a tax on the capital stock of 
the Union Bank impair the obligation of the contract of incorporation 
.made with the State? 

“In the case of the Providence'Bank v. Billings and Pitman, 4 Pet., 
514, it is determined by the Supreme court of the United States that a 
State has the power to tax all moneyed corporations which have been 
chartered by her laws, and that a relinquishment of this power is never 
to be assumed unless the charter contain a stipulation exempting from 
taxation, or words which in themselves would justify the opinion that 
the power of taxation was in the view of the parties, and that an 
exemption was intended, though not expressed. This exemption, it is 
argued, is found in the eleventh section of the act incorporating the 
Union Bank, by which the bank agrees, in consideration of the privi¬ 
leges granted by the charter, to pay to the State annually one-half of 


188 


TENNESSEE CONSTITUTIONAL LAW. 


one per cent on the amount of capital stock paid in by the stockholders. 
This, it is said, is the tax to be paid by the bank to the State by express 
contract, and that, being thus taxed, no law imposing additional bur¬ 
dens on the institution can be considered as having any validity. The 
weight of this argument is felt, and is sought to be obviated by insisting 
that the one-half of one per cent is paid in consideration of the priv¬ 
ileges granted by the charter, and is not to be considered as a relin¬ 
quishment of the right on the part of the State to impose additional 
taxation on the property of the bank, of which the capital stock forms 
a portion. It is unquestionably true that the payment of one-half of 
one per cent on the capital stock is in consideration of the privileges 
granted by the charter, and does not exempt from taxation any prop¬ 
erty of the bank not necessarily included in and forming a portion of 
those privileges, and without which they could not possibly be enjoyed. 
What are the privileges granted? Among others, the right to use the 
capital stock of the institution for all legitimate banking purposes. 
This is the end and design of the act of incorporation, the privileges for 
which the one-half of one per cent was contracted to be paid, and out 
of which the fund for so doing was to be raised. How can the privilege 
of banking, which is given by the charter, be exercised without a use of 
the capital stock of the institution? Can bills or notes be bought or 
exchange made without money? Surely not. Then, when an institution 
contracts with the State for the right of doing these things, and pays 
therefor a valuable consideration, does it not necessarily follow that it 
has contracted and paid for the use of those means without which 
the right would be nugatory? . . . This construction of the 

contract is strengthened by the wording of the eleventh section of 
the charter. If it had been intended to pay only for a naked priv¬ 
ilege, without the use of the means for enjoying it, it would seem 
that a definite sum, in gross, would have been specified. 

Then, if the Union Bank, in consideration of the payment annually 
of one-half of one per cent on its capital stock, has purchased from 
the State the privilege of employing it in banking operations, does 
a law which imposes, in addition thereto, an annual tax on the same* 
capital thus employed impair the obligation of the contract? Most 
unquestionably it does. The bank has agreed to pay one amount, and 
the State, without its consent, has superadded another. Then, if the 
construction sought to be given to the clause of the Constitution of the 
State, and the acts of the legislature which have been referred to, be 
correct, their provisions are in direct violation of the Constitution of 
the United States, and they are, so far as they may seek to tax the cap¬ 
ital stock of the bank, null and void.” 17, 495. 1 Union Bank v. The 
State. 1836. 


1 See same case, art. 2, sec. 28; also, 65, 556. 



LAWS IMPAIRING CONTRACTS. 


189 


Taxation — Exemption From, Under Bank Charter — How Far This 
Right Extends.— Cooper, J.: “It may be conceded, therefore, in accord¬ 
ance with the authorities cited and relied on by the learned counsel of 
the complainant, that a contract by charter for the payment of a par¬ 
ticular tax, ‘ which shall be in lieu of all other taxes/ will protect the 
capital stock of the corporation, and all the property in which that 
capital stock may be lawfully invested for the purposes of the incor¬ 
poration, from any additional taxation. But, as we haze seen, an 
exemption from taxation, and for the same reason a limited exemption, 
will not exempt property beyond the legitimate wants of the corpora¬ 
tion for the purposes of its incorporation. And, clearly, such exemption 
would not protect property which the corporation is without authority 
to hold. If it were otherwise, the corporation might abandon the pur¬ 
poses for which it was created, and invest its capital in property, and 
extend the immunity conceded for a specific object to the exemption of 
that property from the common burden of government. The authorities 
relied on cover cases in which property was legally bought and held for 
corporate purposes. No case has been produced, and, perhaps, none 
can be, where the property was not necessary for the purposes of incor¬ 
poration, and not authorized to be held by the corporation.” 74, 706. 

1 Bank of Commerce v. McGowan. 1881. 

Certain Tax in Lieu of All Other Taxes — Exemption Clause in Char¬ 
ter—Rule of Construction.— Caldwell, J., held: “ Under charter granted 
prior 1 2 to Constitution of 1870 to a bank or insurance company, containing 
a provision ‘that said company shall pay to the State an annual tax of 
one-half of one per cent on each share of stock subscribed, which shall 
be in lieu of all other taxes/ both the capital stock of the corporation 
and the shares of stock in the hands of the stockholders are exempt 
from all other taxes, whether ad valorem or privilege, imposed by State, 
county or municipality. This decision rests alone upon the authority of 
Farrington v. Tennessee, 95 U. S., 679, so far as it is held that both cap¬ 
ital stock and shares ot stock are exempt under said provision. Except 
for the controlling authority of said case, this court would determine 
otherwise. . . . Doctrine reaffirmed that a charter exemption from 

taxation, granted and accepted prior to Constitution of 1870, constitutes 
an inviolable contract binding upon the State, which can not be impaired 
by subsequent legislation. . . . Also that exemptions from taxation 

are never allowed by the courts except upon ‘ the clearest grant of 
orgauic or statute law/ or unless ‘manifested by words too plain to be 
mistaken/ or declared in ‘clear and unmistakable’ language, or ‘be 

1 Affirmed by United States Supreme court January 9, 1892, Field, J., delivering the opinion, 
which is reported in 104, U. S., 493-497. 

’Acts 1857-58, Ch. 166; Acts 1869-70, ch. 93. 



190 


TENNESSEE CONSTITUTIONAL LAW. 


shown indubitably to exist. 7 The existence of such exemption must be 
free from any reasonable doubt.” 91 , 546. Memphis v. Bank and 
Insurance Co’s. 1892. 

Imposition of Taxes Other than Those Mentioned in Charter Can Not 
be Made.— Swayne, J., held: “A charter of a bank which declares ‘that 
the bank shall pay to the State an annual tax of one-half of one per 
cent, on each share of the capital stock subscribed, which shall be in 
lieu of all other taxes/ is a contract between the State and the bank, 
and any other tax than that therein specified, is expressly forbidden. 
Revenue laws of the State imposing other taxes on the shares than 
those mentioned in the charter, impair the obligation of the contract, and 
are void under the United States Constitution.” Judges Strong, Clif¬ 
ford and Field dissented. 95, U. S., 679, 694. 1 Farrington v. The 
State et al. 1878. 

Corporations — New Powers — Taxation — Special Provision as To — 
Charters Inviolable. — Cooke, Sp. J., held: “The State may authorize a 
corporation to alter its original enterprise and exercise new franchises 
to any extent without impairing any contract with the corporators. The 
effect of such a law is merely permissive, and takes away no existing 
power and affects no existing right. 

“The provision in an act of incorporation that the company ‘shall 
pay to the State an annual tax of one-half of one per cent on each 
share of the capital stock subscribed, which shall be in lieu of all other 
taxes/ is valid, and relieves the corporation of all other taxes, State or 
municipal. Under this provision its real estate necessary for the trans¬ 
action of its business, is not subject to taxation. 

“Neither the legislature nor a constitutional convention has the 
power to violate the contract between the State and a corporation con¬ 
tained in the charter of the latter.” Judge Freeman dissented. 81 , 
400. The State v. Butler et al , 1884. 

What Property of Bank Not Exempt From Taxation. —FREEMAN, J., 
held: “ Where a clause in the charter of a bank exempts from taxation 
a building which the company are allowed to erect under the charter 
for the purpose of carrying on the business of the bank, if any part of 
such building be not so occupied, but is leased out, the exemption will 
reach and cover only so much of the building as is necessary for the use 
of the bank.” 65, 416. DeSoto Bank v. City of Memphis. 1873. 

Privilege — Contract Against Taxation Can Not be Implied — Federal 
and State Constitutions.— Miller, J., held: “A contract against taxation 
of a company can not be implied, because permitting the State to tax 
the company by a license tax for the privilege granted by its charter 


1 Reversing the judgment of the Tennessee Supreme court. See 67, 541, and sustaining 
Judges McFarland and Turney, who dissented in the State court. 



LAWS IMPAIRING CONTRACTS. 


191 


would destroy that privilege. To have an exemption from taxation, it 
is necessary to have a provision to that effect in the charter, in clear 
and unmistakable language. The Constitution of the United States does 
not profess in all cases to protect property from uqjust or oppressive 
taxation by the States. That is left to the State Constitutions and State 
laws.” 109, U. S., 398-401. Memphis v. Gaslight Co. and Taxing Dis¬ 
trict of Shelby County. 1883. 

Taxation — Exemptions Valid Under Constitution of 1834 — GEORGE 
Gillham, Sp. J., reaffirmed the doctrine that, “under the Constitu¬ 
tion of 1834, the legislature had power to grant an exemption from 
taxation that constituted a contract binding on the State, the obligation 
of which could not be impaired by subsequent legislative enactment or 
constitutional provision.” 95, 226. 1 The State v. Bank of Commerce. 

1895. 

Exemptions for Ninety-nine Years Into Whose Hands Soever Real 
Estate May Pass.— On a petition to re-hear, T. M. Jones , 1 Sp. J., said: 
“We do not deem it necessary to review the argument or cite any addi¬ 
tional authorities in support of the conclusion which we reached. Our 
opinion was based upon a solemn judicial construction of the contract 
of North Carolina, as to the grant of the two hundred and forty acres of 
land, in which the lots were sought to be taxed are located. That 
decision, in clear and unmistakable language, held that these lots were 
exempt from all taxation for ninety-nine years, from the passage of the 
Act of 1875, ‘into whose hands soever they might pass/ That this 
decision had been acquiesced in by the State, county and city, for nearly 
half of a century. That the citizens relying upon, and having a right 
to rely upon, this decision made by the Supreme court of their own 
State, was a correct construction of the contract, had invested their 
capital in the purchase and improvement of the lots, embraced within 
the two hundred and forty acre grant—they believed, and had a right 
to believe, that this construction of the statute of contract holding 
these lots to be exempt from taxation for ninety-nine years, formed a 
part of the statute or contract, and their right having vested under it, 
no future legislature, or even a constitutional convention, could impair 
those rights. Now to hold these lots, in the face of the decision of 1836, 
and the acquiescence of the State and city, ever since, not only for 
taxes for the present year, but for back taxes for over ninety years, if 
the legislature of the State choose to enforce this collection, and which 
would be a complete confiscation of all of their lots, we hold would not 
only be unjust and a great wrong, but a violation of law and well set 
principles of law. The exemption only extends for ninety-nine years from 


1 See same case, art. 2, sec. 28; art. 11, sec. 8. 

3 Judges Coopek and Turney being incompetent, Messrs. John V. Wright and T. M. Jones sat 
in their stead. See same case, art. 2, sec. 17; also, The State v. Hicks et al. 17, 487. 



192 


TENNESSEE CONSTITUTIONAL LAW. 


the passage of the statute of 1785, and only to those lots embraced 
within this two hundred and forty acre grant. This was the decision in 
1836, and this is our decision now.” 1 Judges McFarland and Freeman 
dissented. 76, 594. The State exrel. Gaines Comptroller v. Whitworth , 
Trustee. 1881. 

Exemptions—Municipal Corporations. 

Act Extending Corporate Limits—Exempting Lands from Taxation.— 
This was an injunction bill to restrain the corporation from proceeding 
to collect a railroad tax assessed upon the complainant’s lands, which 
were taken into the corporate limits by an act passed February 17,1854, 
containing a proviso to the effect that the “lands thus taken in” shall 
not be subject to a corporation tax while held as woodland, or for farm¬ 
ing purposes, etc. By a subsequent act, passed the 20th of November, 
1857, the foregoing proviso was repealed, “so far as to render all lands 
within the present limits of said corporation liable to railroad tax, 
should the same be voted and imposed by said corporation.” The char¬ 
ter authorized a subscription to railroads. Complainant’s lands were 
still woodland. It was contended that the act of 1854 having been 
accepted by the corporation as an amendment of its charter was a con¬ 
tract between the corporation and the owners of the land which was 
impaired by the act of 1857. McKinney, J.: “The case under consid¬ 
eration is destitute of every element of a contract. The extension of 
the corporate limits of Chattanooga was an exercise of governmental 
power of which the persons newly taken in could not be heard to com¬ 
plain ; they had no voice in the matter, no power to resist, nor was any 
legal right of theirs infringed thereby. The provision of the act exempt¬ 
ing their lands for a time from a corporation tax was without any con¬ 
sideration moving from them, and purely gratuitous on the part of the 
legislature; and, to say the least of it, was an invidious and improvident 
provision made in their favor. 

“It is unquestionably true that the government may surrender the 
power of taxation, in respect to particular lands, in favor of an indi¬ 
vidual, and it is no less true that the provision of the Constitution 
securing the inviolability of contracts extends as much to contracts 
with a State as to contracts between individuals. But the surrender of 
this, or any of the rightful powers of government, is not to be presumed; 
nor is the bestowal of a privilege, for a limited time, and without con¬ 
sideration, to be taken as obligatory on the legislature in a case like the 
present. The exemption contained in the Act of 1854 was a privilege 
which the legislature, in its discretion, might bestow, and which it might 
at pleasure take away, inasmuch as no private vested right was affected 
in the sense of the Constitution. The grant of the privilege, and its 

1 Affirmed by U. S. Supreme court March 1,1886, Waite, C. J., delivering the opinion, which 
is reported in 117, U. S., 129-139. 



LAWS IMPAIRING CONTRACTS. 


193 


resumption, were alike discretionary matters of sovereignty.” 40, 321. 

1 McCallie v. Mayor etc. of Chattanooga. 1859. 

Municipal Corporation Has No Right to Levy Tax where State is 
Estopped.— Question: Did the city of Memphis have the right to exact 
payment of a license tax of corporations for exercising their respective 
franchises within its corporate limits, when the State had exempted 
said corporations by the terms of their charters from a greater tax than 
one and one-half per centum ? 

Nicholson, J.: “Whether wisely or unwisely, it is clear that the 
legislature by this language has estopped itself from imposing any other 
tax for State purposes, and has agreed that the companies shall be 
exempt from ‘ all other taxes/ This must necessarily operate as a pro¬ 
hibition against the imposition of taxes either by the State, county or 
city government. It was an open question in our State, it might very 
well be questioned whether one legislature has the right by an act of 
incorporation, for a consideration received or supposed to be received, 
to exempt certain property, rights, or franchises from taxation by a 
subsequent legislature. But, as remarked by Mr. Cooley, on page 280 
of his work on Constitutional Limitations, ‘it has been so often decided 
by the Supreme court of the United States, though not without remon¬ 
strance on the part of State courts, that it is a contract protected by 
the Constitution, that the question can no longer be considered an open 
one/ It involves the construction of the clause of the United States 
Constitution forbidding the States to ‘pass laws impairing the obligation 
of contracts/ and on that account the decisions of the Supreme court 
of the United States must be regarded as conclusive on the ques¬ 
tion. . . , ‘ It is clear that municipal corporations are not authorized 

to levy taxation on property or privileges other than such as are tax¬ 
able by the statutory laws of the State. Nashville v. Thomas, 5 Cold., 
600. The municipal corporation is an agency of the State government, 
and can exercise no powers in contravention of the general law, and 
none but those expressly granted or necessarily implied. It follows 
that if the State has estopped itself from imposing other taxes on the 
exercise of the franchises granted, the municipal corporation is equally 
estopped.” 65,527. City of Memphis v. Hernando Insurance Co. 1873. 

Municipal Corporation — Suit Against Old May Be Renewed Against 
New.— cooper, J., held: “Wheu the charter of a municipal corporation 
is repealed, and the same people and the same territory are reincor¬ 
porated as a municipality under a new name, although with different 
powers and different officers, a suit pending against the old corporation 
at the date of the repeal may be revived against the new corporation.” 
McFarland, J., dissented. 74,730. O'Connor v. City of Memphis. 1881. 


1 See same case, art. 2, sec. 29. 


13 



194 


TENNESSEE CONSTITUTIONAL LAW. 


Municipal Corporations May Forbid Erection of Buildings — Contract 
Not Impaired, When.— Freeman, J., held: “It is not the impairment of 
the obligation of a contract, in the constitutional sense, for a city to pass 
an ordinance forbidding the erection of wooden buildings within fire 
districts, although the contract was made to do so, before the passage 
of such ordinance. . . . The argument is earnestly pressed upon us, 
that the ordinance is void as impairing the obligation of the contract 
with the owner to build, or with the workmen who had contracted to 
erect the building. We take it, there is nothing in this objection. The 
principle applicable to this aspect of the case is thus stated by Mr. Par¬ 
sons: ‘If one agrees to do a thing that is lawful for him to do, and it 
becomes unlawful by an act of the legislature, the act avoids the 
promise, and so if one agrees not to do that which he may lawfully 
abstain from doing, but a subsequent act requires him to do it, this act 
also avoids the promise/ Parsons on Cont., vol. 2, p. 674.” 80, 121. 

Knoxville v. Bird. 1883. 

Public Road Through Town — Legislative Power Doubted. — It 
appeared to the court that the town of Knoxville was recognized as 
such by several acts of assembly. The court of Knox county made an 
order, appointing viewers of a road within the limits of the town. The 
viewers made return that it should pass through Cowan’s lot. The sum 
of one hundred dollars was assessed as damages to Cowan. After 
deciding that the x Act of 1804, ch. 1, sec. 1, authorizing the County 
court to order the laying off and discontinuing of such roads within a 
county as they shall deem proper, could not by a literal construction be 
extended to streets, the court said that the erection of territory “by 
the legislative authority into a town creates a state of private property 
and interest distinct from the body of the county, and it is essential to 
its very existence that its local establishment should be regulated by the 
townspeople,” and said further, that “it is scarcely probable that the 
legislature meant to give a power which it were doubtful, to say the 
least of it, whether they possessed themselves. The legislature had an 
undoubted right to lay off a town or not to do it. But when it was 
done it may be said to be on the principles of implied contract that 
those small lots sold under the sanction of government should forever 
be held as private property, and not subject to be violated in turning 
them into the ordinary purposes of county roads; but on this last point 
it is not necessary to give any decisive opinion.” 1, 311. Nathaniel 
Cowan’s Case. 1808. 


1 H. & C., vol. 1, p. 284; Code 1858, 1183; T. & S., 1183; M. & V., 1323. 




LAWS IMPAIRING CONTRACTS. 


195 


Charter Eights of Turnpike and Bridge Companies. 

Public Bridge — Subsequent Act Converting It Into a Toll Bridge 
Valid, When.— The Act of 1819, ch. 103, authorized the building of a 
bridge across Duck river adjoining the town of Columbia. By an 
amendatory Act of 1823, ch. 139, the County court of Maury was 
authorized to convert this into a toll bridge, which was done. Green, 
J., held: “This latter act creates no right in the County court of Maury, 
in relation to the bridge that might not be abridged or taken away alto¬ 
gether by a subsequent act; and the erection of a bridge contiguous to 
the old one by the Franklin and Columbia Turnpike Company under 
their charter — Private Acts 1835, ch. 14 — will not interfere with any 
right of the County court of Maury.” 21, 468. 1 Franklin and Columbia 
Turnpike Co. v. Campbell. 1841. 

Shunpike Road Opened By County Court — Injunction. — TtJRLEY, J., 
held: “The power to open roads is a prerogative of sovereignty, which 
has been delegated by the legislature to the County courts, and is exer¬ 
cised by them as a municipal, and not a judicial, function, and as the 
legislature could not, after the grant of a charter to build a turnpike 
road and receive toll thereon, grant another charter, the only object of 
which was to evade the payment of the toll on the previous road, so the 
County court can not lawfully establish a road to the same end, and 
equity has jurisdiction to remove the obstruction to the franchises of 
the turnpike company as a nuisance upon its rights.” 27,343. Franklin 
and Columbia Turnpike Co. v. Maury County. 1847. 

Toll Bridges—Exclusive Privilege for Certain Distance—Act Author¬ 
izing Construction of Another.— In 1829 the legislature granted to the 
plaintiff the right to erect a bridge across Red river, at the town of 
Clarksville, with the usual power to exact tolls of persous crossing the 
bridge, and stipulated in the charter that no other toll bridge should be 
at any time erected within one-half mile of the plaintiff's bridge. The 
plaintiff erected its bridge at the place designated in the charter, and 
continued to exact tolls of persons crossing it until the commencement 
of this suit. In 1847 the legislature authorized the municipal authori¬ 
ties of the town of Clarksville to purchase the plaintiff's bridge, or to 
erect a free bridge near to the same. The corporation commenced 
building its bridge within a few feet of the plaintiff’s bridge, whereupon 
it hied this bill in chancery at Clarksville, praying an injunction against 
the erection of said free bridge, and asking compensation for the damage 
sustained thereby. The chancellor (Judge Brien) dismissed the bill, 
and complainant appealed. 

McKinney, J.: “In view of all the facts of this particular case, we 
think the complainant is entitled to compensation as prayed in the bill. 


1 Meigs’ Digest, vol. 2, p. 888. 



196 


TENNESSEE CONSTITUTIONAL LAW. 


Whether or not the charter granted to the complainant contains the 
exclusive right alleged in the bill, and admitted in the answer, does not 
certainly appear, nor is it important to inquire how the fact is, with a 
view to the decision of the present case. For, assuming that it does, 
still we think it clear that such exclusive right must yield to the public 
interest. And admitting the grant to be a contract, and that is invio¬ 
lable, yet to hold that the property or franchise acquired under it may 
be taken for public use, ‘upon just compensation being made therefor/ 
is not to violate or impair the contract, in the sense of the Constitution. 
The proof in this record establishes that the bridge of the complainant 
was amply sufficient for the accommodation of the public, and that the 
sole and avowed object of the erection of a free bridge, within a few 
feet of the former, was to divert the whole travel from it, and thereby 
destroy its value, under a belief that the inducement held out to the 
public by a free bridge would greatly promote the local interests of the 
town of Clarksville. 

“It is manifest that the erection of a free bridge, under the circum¬ 
stances of this case, amounts to a total destruction of the franchise 
granted to the complainant, in principle and in effect. The site and 
structure of the old bridge might as well have been taken and appro¬ 
priated to the use of the new one; and while we concede that this might 
be done, and likewise concede that the grant to the defendants must be 
regarded as sufficient evidence that the public interest required that it 
should be done, yet we hold that it could only be done upon the condi¬ 
tion of making ‘just compensation’ to the complainant for the franchise 
thus destroyed. 33, 176. Red River Bridge Co. v. Mayor etc. of Clarks¬ 
ville. 1853. 

Statute Setting Back Toll Gates Impairs Contract and is Void—When 
— Recognition of Charter — Law of the Land — Distinctive Departments 
of Government—Police Power.— COOPER, Ch.: “The legislature, on 
March 16,1877, passed an act entitled ‘An Act to set back toll gates 
on White’s Creek pike.’ This act, after reciting, by way of pream¬ 
ble, several of the facts touching the White’s Creek Turnpike Com¬ 
pany hereinbefore noticed, undertakes, as it says, ‘by virtue of the 
police power of the State,’ to require the company to move back its 
first gate at least two miles from the corporate limits of Edgefield, and 
the second gate at least five miles from the first, under the penalty, on 
failure, of forfeiting all right to demand or receive toll on said road. 
The act does not purport to be an amendment to the charter of the 
company, nor has it been treated as such in the argument, nor has it 
been claimed that the company has accepted it as an amendment. The 
argument on behalf of the defendants is that the act is a law within the 
police power of the State, which the legislature could constitutionally 
pass, and which the company were bound to obey or lose all right to 


LAWS IMPAIRING CONTRACTS. 


197 


take toll. In this view, the company would have no interest in the 
question of the new road. The rights of the parties, therefore, turn 
upon the validity of the act in question.” 

After quoting from several authorities the elementary principles of 
law in regard to charters being contracts, Judge Cooper says: “The 
counsel of the defendant do not deny these elementary principles, but 
insist that there is an exception in the exercise of the police power of 
the State. And, undoubtedly, a corporation, like an individual citizen, 
takes its rights and franchise subject to the regulating control of the 
legislature. ‘The limit/ says Mr. Cooley, ‘to the exercise of police 
powers in these cases must be this: the regulations must have refer¬ 
ence to the comfort, safety, or welfare of society; they must not be in 
conflict with any of the provisions of the charter; and they must not, 
under pretense of regulation, take from the corporation any of the 
essential rights and privileges which the charter confers. In short, they 
must be police regulations in fact, and not amendments to the charter 
in curtailment of the corporate franchise.’ Cooley’s Const. Lim., 577. 
Accordingly, where a corporation was chartered with the right to take 
toll from passengers over their road, a subsequent statute authorizing 
a certain class of people to go toll free was held void. The State v. 
Martin, 1 Tenn. Leg. Rep., 374; Pingrey v. Washburn, 1 Aik., 268. And 
where a turnpike was authorized by its charter to locate its gate at a 
particular place, which was done, a subsequent act requiring them to 
remove the gate was held to be unconstitutional and void, though in the 
meantime a village had grown up and around the gate. Attorney Gen¬ 
eral v. Germantown and Philadelphia Turnpike Co., 55 Penn., 466. A 
fortiori , if, as in the case before us, the village is not less than half a 
mile from the gate. 

“It is argued that the exercise of a right, lawful in its inception, 
may become a nuisance, and liable to abatement as such. If the posi¬ 
tion be conceded, there is nothing disclosed by the record to bring this 
case within its operation. The talk of tolls under a legislative graut, 
however unpalatable their payment may be to a citizen, is not a nuis¬ 
ance in law. The decisions, as we have seen, are directly the reverse— 
that it is a nuisance to resort to a device to avoid their payment, and 
that the exercise of an undoubted power by a court, if it tend to this 
result, will be enjoined by this court upon that very ground. Besides, 
the abatement of a nuisance is clearly not a legislative but a judicial 
act. It can only be done by legal proceedings according to the law of 
the laud, in which the supposed offender will have an opportunity to be 
heard, not by a legislative flat. All the legislature can do under our 
constitution is to declare, by a general law, what is a nuisance. The 
application of the law in the determination of private rights belongs 
exclusively to the courts. 


198 


TENNESSEE CONSTITUTIONAL LAW. 


“By the Constitution of 1870, art. 11, sec. 1, the powers of the gov- 
ernment are divided into three distinct departments. ... By art. 6, 
sec. 1, the judicial power of the State is vested in the courts. By art. 
1, sec. 8, of our Bill of Eights, no person can be deprived of his privi¬ 
leges or property ‘but by the judgment of his peers or the law of the 
land.’ All these provisions have been contained in each of the three 
constitutions adopted since the organization of the State government, 
and repeatedly passed upon by the courts. 

“The act before us undertakes to deprive the White’s Creek Turnpike 
Company of the valuable franchise, acquired under previous legislative 
grant, of taking toll at its first gate. It does so, not by a general law 
directed to all turnpikes in like situation, but by a special provision 
pointed at this company alone, and upon a legislative adjudication that 
it has become amenable to the police power of the State. It is in plain 
violation of those fundamental principles of the Constitution which con¬ 
fine the judicial power of the State to the courts. It is not even in form 
of law, but a special act or edict for a particular purpose, and that pur¬ 
pose the destruction of a private right, without a hearing.” Tenn. Chan¬ 
cery Bep., vol. 3, p. 404. White’s Creek Turnpike Co. v. Davidson 
County et al. 1877. 

Turnpike Charter—Tollgates—Police Power. — FREEMAN, J., held: 
“The 1 Act of 1849-50 is not binding on turnpike companies, the char¬ 
ters of which had been passed, accepted, and the company organized 
under it before the passage of such act, when the charter prescribes 
the rights to take toll of all persons without limitations, etc., the charter 
being a contract, and as such can not be impaired. The police power 
of a State can not afford relief in such case.” Tenn. Leg. Rep., vol. 1, 
p. 374. The State v. Martin. 1877. 

Turnpike Company—Provisions in Charter—Indictment for Not Keep¬ 
ing Road in Repair. —Deaderick, J., held: “A turnpike company is not 
protected from indictment for failing to keep its road in repair by a 
provision in its charter that if the company fail to keep its road in 
repair for the space of twenty days, upon information given, a jus¬ 
tice of the peace shall summon three freeholders, and if, in the pres¬ 
ence of said justice, said freeholders find said road out of repair, the 
tolls shall cease until the road is repaired, and the person entrusted 
with the repair of the road shall be subject to a fine of ten dollars, 
one half to go to the prosecutor and the other half to the 2 county.” 
84, 24. White's Creek Turnpike Co. v. The State. 1885. 

Turnpike Companies—Charter Rights — New Roads and Bridges— 
Impairment of Franchise — Not Taking Property. — Lea, J., held: “The 
obligation of the charter contract, whereby a turnpike company is author- 


1 Acts 1849-50, ch. 72, sec. 18; T. &. S., 1434, 1436, 1437. 


2 M. & V., 1475 et seq. 



LAWS IMPAIRING CONTRACTS. 


199 


ized to exact tolls from persons passing over its road and through its gates, 
is not impaired or violated, within the prohibition of the Constitution, by 
the action of the County court creating new public roads and bridges, the 
necessary effect of which is to divert travel from the turnpike and 
seriously reduce the company’s revenues, provided the new roads and 
bridges are not, in intent and effect, mere shunpikes, but reasonably 
essential to the public convenience; and provided further, they are not 
located within territorial limits exclusively devoted to the turnpike 
company by a reasonable and valid provision of its charter. . . . 
And the impairment of a turnpike company’s franchises and revenues 
by such lawful creation of public roads and bridges does not constitute 
such taking of its property for public uses as will render the county 
liable for damages thus inflicted.” 91, 291. Turnpike Co. v. Davidson 
County. 1892. 

The State Debt Case. 

Right of the State to Preserve Its Own Existence — Power of the 
Legislature to Make a Contract Which Surrenders Power of Repeal and 
the Power to Legislate for the Public Good — Act Authorizing Settlement 
of the State Debt — Bonds — Coupon Feature — Jurisdiction of U. S. 
Supreme Court — Sovereign Power of the State to Deal With Public Debt, 
Raise Revenue by Taxation, Appropriate It, etc., by Successive Acts 
From Time to Time — Surrender of That Power — Integrity of the People. 
—The object of the bill iu this case was to prevent the execution of an 
act passed by the legislature on April 5, 1881, authorizing the funding 
(by the issuance of new bonds) of much the larger part of the bonded 
indebtedness of the State. McFarland, J.: “The bonds authorized by 
the act will aggregate about twenty-seven millions of dollars. They 
are to run ninety-nine years from the 1st of July, 1881, redeemable at 
the pleasure of the State at any time after five years. They are to bear 
interest at the rate of three per cent per annum, evidenced by coupons 
payable semi-annually in New York. The third section provides that 
the coupons, on and after their maturity, shall be receivable in payment 
of all taxes and debts due the State, except for taxes for the support of 
common schools and for the payment of the interest on the common 
school fund, and said coupons shall show upon their face that they are 
so receivable. . . . The provision in regard to the coupon is not 

only a law regulating the collection and disbursement of the revenue 
and the conduct of the State’s officers, but, under the construction put 
upon similar provisions by the Supreme court of the United States, it 
becomes part of the contract. The question, therefore, is, can one leg¬ 
islature, in the form of a law, make a contract which surrenders the 
power of future legislatures to enact laws for the public good? Can 
one legislature surrender those attributes of sovereignty which are 


200 


TENNESSEE CONSTITUTIONAL LAW. 


absolutely necessary, not only to the well-being of the State, but to its 
very existence? Stated in this form, there can be but one answer. No 
such power can or ought to exist. The power, from time to time, to 
enact such laws for the public good as may then appear necessary, is an 
essential element of sovereignty absolutely necessary for the existence 
and well-being'of the State, and can not be surrendered. But, it is said, 
if this proposition be carried to its full length, it denies to the State the 
power to issue bonds in any form; that the power to bind the State by 
the ‘coupon feature’ of the law, is no higher than the power to issue an 
ordinary bond; that in each case the faith, honor, and credit of the 
State and its future revenues are pledged for the payment of the prin¬ 
ciple and interest of the debt, and nothing beyond this in either case. 
If the power exists to make one form of bond, it must exist to make 
the other, as the power to provide the manner of payment must be 
co-extensive with the power to create the debt. If the obligation con¬ 
tained in the ‘coupon feature’ be allowed to stand upon the same basis 
as the bond without this feature—that is, upon the faith and honor of 
the State—and bear the same construction, then this assumption might 
be correct. . . . 

“The difference between the two characters of bonds is this: The 
ordinary bond pledges the honor and faith of the State. Each successive 
legislature, as the representatives of the people, is left to meet its part 
of the obligation. In doing so, they act from the sense of honor and 
good faith which is supposed to actuate the people of a sovereign State 
and their representatives. It is for them to determine what honor and 
good faith require, but there can be no power to coerce their action. 
They are not bound by previous legislation further than honor and good 
faith require they should be bound, and of this they are to judge. By 
the issuance of the ordinary bond, the power to legislate in the future 
for the public good is in no sense relinquished. On the other hand, the 
bonds with the ‘coupon feature’ not only pledge the honor and faith of 
the State, but practically takes the matter entirely out of the control of 
the people or any future legislature while the obligation lasts, not only 
as to the question whether the coupons shall be paid, but also as to the 
manner of their payment. The revenues to be raised by future legis¬ 
latures are, to this extent, not only pledged, but actually appropriated 
and put beyond their control. To this extent they are deprived of all 
power of legislating upon the subject. So it is apparent that the powers 
exercised in the two cases are essentially different. . . . 

“The right of the State to preserve its own existence and good 
government, and the right of the people to support and maintain them¬ 
selves, is superior to the right of the creditor. This principle is recog¬ 
nized even in regard to private contracts by our liberal exemption laws. 
In the event of war, famine or pestilence, is it possible that a legislature 


LAWS IMPAIRING CONTRACTS. 


201 


would not have the power to suspend the payment of these coupons, or 
postpone them, to the superior demand for the preservation of the 
State and the people themselves? In such an event, I do not think it 
can be denied that the power to repeal the law would exist. We can 
not know that such emergencies may not arise within the next ninety- 
nine years. It will not do to say that the legislature that passed this 
act determined that no such emergency would ever arise, and that it 
would never be necessary to repeal it. This is absurd. It is said that 
such emergencies are improbable, extreme cases that may never occur, 
and that we need not now undertake to provide against them. True, 
we need not; but we must preserve in the government the power to 
provide for such emergencies if they should occur—the power to pro¬ 
tect itself and its people in times of calamity and peril. Extreme cases 
may always be supposed in order to test principles. This is not arguing 
that the act in question may become unconstitutional upon such future 
contingency. The happening of such future contingency is referred to 
for the purpose of showing that the act was in excess of legislative 
power at the time it was passed. Then if it be conceded that, under 
any emergency that may reasonably be supposed, the power to repeal 
the law would exist, it seems to me to follow inevitably that the act, 
which, according to the construction placed upon such acts, stipulates 
that it shall not be repealed, was beyond legislative power. It will not 
do to say that the legislature might make such a contract, but that we 
wiil annex to it the implied qualification, that upon sufficient emergency 
the law may be repealed and the contract impaired. This qualification 
necessarily destroys the whole contract. If the law may be repealed in 
any emergency, then who is to judge of the sufficiency of the emer¬ 
gency? Certainly not the courts. It can not be said that the courts 
would uphold a- repeal of the act if, in their opinion, it was upon an 
emergency justifying it, and disregard the appeal if the emergency was 
not deemed sufficient. The considerations upon which the sufficiency 
of the emergency would have to be determined are not judicial in their 
character, but purely political and legislative. If, then, we concede 
that the sufficiency of the emergency is to be determined by the legis¬ 
lature, it inevitably results that they may repeal the law at pleasure, 
and the contract is without validity. . . . 

“ Whether our legislature has the power to bind the State by the 
contract supposed to be impaired, is not a question for the Federal 
Supreme court. This is a question depending upon the construction of 
our own Constitution, and belongs to this court. If our Constitution 
denies to the legislature the power to make the contract, and this court 
so declare, I do not understand that the Federal Supreme court has any 
jurisdiction to review our decision. It is certain it would not if the law 
be declared unconstitutional, and the proposed contract without 


202 


TENNESSEE CONSTITUTIONAL LAW. 


authority, in advance, and its execution prevented, whatever it might 
decide in the event the question were to come up after the bonds are 
issued. So that, when it is found that legislative acts of the character 
of this one are construed to be contracts, by which the State is sub¬ 
jected to the jurisdiction of the Federal court, and by which its sovereign 
power, necessary for its own existence and well-being, is surrendered, 
the State court is well justified in declaring that no power exists in 
the legislature to make such a contract. The State must reserve to 
itself and to each succeeding legislature the sovereign power to protect 
itself and to attend to its own local affairs. Its legislature can sur¬ 
render no power not already vested in the Federal Government. Again, 
assuming that the debt will always be regarded as a just debt, and that 
no calamity will ever occur rendering the people for the time unable to 
meet the interest; that each successive legislature will be willing in 
good faith to discharge the duty of levying the necessary taxes; still it 
might, in their opinion, be necessary for the public good to change the 
manner of payment and repeal the coupon section, collect the taxes in 
money, and pay the coupons at the treasury. This might become neces¬ 
sary to prevent the various tax collectors in the State, many of whom 
are unskilled in business, from receiving counterfeit coupons. The 
delay in the collection of taxes, even when an ample amount is levied, 
may, on account of the prior claim of the coupon holders, be found to 
operate unjustly to the other creditors of the State, and create embar¬ 
rassments for want of funds to meet the current expenses. The legis¬ 
lature might desire to obviate this by levying a separate tax, payable in 
money, to meet the current expenses, leaving an ample amount payable 
as before in coupons, to take up all that remain outstanding. Neither 
of these changes supposes any purpose to repudiate the debt. They 
would be perfectly fair and just, and not inconsistent with perfect good 
faith. Yet, if the contract be valid, neither of these changes could be 
made. Such changes in the law might be necessary for the public good, 
and yet the legislature of a sovereign State be without the power to 
pass them. We can not determine, nor was it in the power of the last 
general assembly to determine, that these changes would never be 
necessary or important. It is a power constituting an essential element 
of sovereignty necessary for the purposes of government, and can not 
be surrendered, but must remain with the people and their representa¬ 
tives for the time being. The extent of the power is not important. 
If one essential element of sovereignty may be surrendered, why may 
not all? Where is the limit? . . . 

“It is said, however, that the bill attacks the act upon the ground 
that the legislature can not pass an irrepealable law, and hence this law 
is repealable; and at the same time assumes that the act is unconstitu¬ 
tional because it is not repealable. This argument is earnestly pressed, 


LAWS IMPAIRING CONTRACTS. 


203 


and it is insisted that the law is either repealable or it is not repealable; 
if it is repealable no relief is now needed, and it will be for the legisla¬ 
ture to repeal it at pleasure; if it is not repealable, the complainants 
are entitled to no relief by their own showing. This, though ingenious, 
savors of 1 special pleading.’ If the section in question was only a law, 
it would of course be repealable, but it involves also elements of a con¬ 
tract, and if the power exists to bind the State to these stipulations, 
and the terms be accepted, then the contract could not be impaired. 
As to neither of these propositions can there be any doubt. Nor can 
there be any doubt, under the decision of the Federal Supreme court, 
that this is a contract. No difficulty can exist as to its construction and 
meaning. It was intended to prevent the repeal of the law. The ques¬ 
tion is not whether it is or is not a contract, or as to the meaning of the 
contract; but the question is, whether the legislature had the power to 
bind the State to these stipulations. It is not an accurate statement of 
the position of the complainants to say that the act is unconstitutional 
because it is not repealable, but it is, because it professes to authorize 
a contract on behalf of the State which the legislature had not the 
power to make — that is, a contract relinquishing part of the sovereign 
power of the State. Of course, if the law be unconstitutional, it may 
be so declared, even after the bonds are issued; but it does not follow 
that it may not be so declared in advance. It is assuming that the 
question can not arise until there is an attempt to repeal the law—that 
until then there is no real case. But this overlooks the fact that this is 
not only a law, but professes to be a contract. If the court has juris¬ 
diction and the proper parties are before it, no doubt can exist as to 
the right to declare in advance the want of power to make the contract, 
and prevent its consummation. . . . 

"It simply resolves itself at last into the question, whether the 
sovereign power of the people of this State to deal with their public 
debt, to raise revenue by taxation and appropriate it, and enact laws in 
regard to the manner of such collections, shall remain with them and 
their representatives as they shall from time to time assemble, or shall 
that power be held to have been surrendered by the contract of one 
general assembly for ninety-nine years, and the jurisdiction thereby 
vested in the Federal court to coerce the State into the performance of 
the contract. It must be remembered that if the contract be valid, the 
people of the State can not change it even by constitutional amend¬ 
ment— they can not even in this mode impair the obligation. The last 
general assembly, actuated no doubt by a patriotic desire to redeem the 
honor of the State and do justice to its creditors, undertook to satisfy 
their demands by putting the obligation in such form that no future 
legislature could question the settlement or change the manner of pay¬ 
ment. This feature of the law seems to have had its origin in a want 


204 


TENNESSEE CONSTITUTIONAL LAW. 


of confidence in the integrity of the people and their future representa¬ 
tives. In this I think the legislature exceeded its power. The responsi¬ 
bility of making provision for the debt, the honor and the good name 
of the State, must be left with the people. If they in an evil hour 
should choose to violate their faith, and bring reproach and dishonor 
upon themselves by repudiating debts that in justice they ought to pay, 
it will indeed be a sad calamity; but I am not to presume that such an 
event can ever occur. The people of this State can not be guilty of so 
great a folly and so great a crime; but if they choose to do so, I do not 
know how they shall be prevented. One legislature has no power to act 
upon such a presumption, and bind the people by a contract which sur¬ 
renders their sovereign powers.” 76, 235. * l Lynn et al. v. Polk et al. 
1881. 


1 See same case, art. 1, sec. 17, p. 128, and art. 2, sec. 2. 

1 This is known as the “ State Debt ” case. The judges were Freeman, McFarland, Turney, 
Deaderick, and E. H. Ewing, Sp. J. Each judge delivered an elaborate opinion, all of the 
opinions covering more than 200 pages. 1 give extracts from the opinion of Judge McFarland. 
Judges Deaderick and Ewing thought the act constitutional. 



EMINENT DOMAIN. 


205 


EMINENT DOMAIN. 


Right to Services and Property — Com- I 


Jurors—Compensation for Services Not a 
Common Law Right—Act Taxing 

Losing Party with Costs. 205 

State Can Exercise Right of Eminent Do¬ 
main for Public Good Only—Grist 

Mill. 206 

Right of State to Take Property—Right of 
Citizen to Compensation — How 
Ascertained — Incidental Benefits, 

etc.—Measure of Damages. 208 

Public Necessity and Convenience Distin¬ 
guished-Abuse in Exercise of 
Power—Province of Legislature 
and Courts Respectively. 214 

Property — Notice — Assessment — Notice — 
Delegation of Power—Duties of 
Legislature and Courts Again Dis¬ 
tinguished.216 

Compensation Need Not be Made Until 
After Property is Taken When Pay¬ 
ment Made Certain.217 

Benefits Accruing to Other Lands of Pro¬ 
prietor Not to be Considered—Spe¬ 
cial Legislation. 218 

Statutory Provisions Concerning Compen¬ 
sation-Restrictions . 219 

Remedy Provided by M. & V., 1571, Not 

Exclusive—Court of Equity.219 

Measure of Damages—What Constitutes 

Just Compensation. 219 

Persons Under Disability Entitled to Com¬ 
pensation. 220 

Internal Improvements — Legislation in 
Tennessee—Subscription by County 
to Railroad Corporation—Nature of 
Contract. See Art. 2, Sec. 29, Rail¬ 
road v. Davidson County. 


Municipal Corporations. 

PAGE. 

Must Exercise this Power According to 
Methods Prescribed by State—Fair 


Cash Value. 220 

Power to Remove Nuisances—This Clause 
Not a Limitation Upon Exercise of 
Police Powers.220 

Compensation for Property Outside of City 

Destroyed by City Authorities.221 

Special Act Extending Boundaries Does 

Not Deprive Owner of Property.... 68 


Turnpikes—Roads—Private Way. 

Damages for Road to be Opened-Road 

Already Opened—Obstruction. 221 

Private Way—Right to Property Protected 

—Indemnity. 222 

Opening and Changing Public Highways— 

Road Law of 1889, Void. 224 

Impairment of Turnpike Company’s Fran¬ 
chise and Revenues Not “Taking 
Property,” When. 198 

Property or Franchise Acquired Under 
Charter Contract Can Not be Taken, 
When—Toll Bridge—Free Bridge... 195 


Impressment. 

Legislature, Not Military Commander, Has 

Power to Impress Property. 224 

By Military Commander Questionable, 

Without First Showing Danger.... 225 

For Army in Field—Right in State Depends 

Upon Police Power, Emergency, etc. 226 


Art. 1, Sec. 21. That no man’s particular services shall be 
demanded or property taken, or applied to public use, without 
the consent of his representatives, or without just compensation 

being made therefor. 1 [Same as Const. 1834, art. 1, sec. 21; Const. 1796, 
art 11, sec. 21.] 

Demanding Particular Services — Compensation. 

Jurors—Compensation for Services Not a Common Law Right.— The 
Act of February 24, 1875, entitled “An Act to tax the losing party with 
the jury fees in all cases in civil suits, and to repeal sections 4036 and 
4037 of the Code,” was considered. It was insisted that the act was in 
violation of this section of the Constitution. Nicholson, J.: “The 
ground of this objection is, that in all civil cases in which the losing 

‘For indirect or unimportant references to this section, see 10, 143; 36,530; 48,63, 72; 
79, 733; 82, 65; 88 , 752 ; 90 , 602. 
























206 


TENNESSEE CONSTITUTIONAL LAW. 


party is insolvent, the jurors will have been required to give their par¬ 
ticular services to the public use without being compensated therefor. 
It is true, that in cases in which the losing party is insolvent, jurors 
will get no compensation, but in this respect they are placed on the 
same footing with others whose compensation is taxed as part of the 
costs of the case. Witnesses and officers of court are required to give 
their services, and to look to the costs when collected from the losing 
party for compensation for their services. It can not be assumed that 
compensation for services as a juror is a common law right. It is 
stated in the Mirror of Justice, ch. 11, sec. 4, that in the time of 
Henry I it was ordained that ‘jurors sworn upon assizes should not 
have fees.’ But it is one of the implied and necessary conditions upon 
which men form governments, that sacrifices must sometimes be made 
by individuals for the common good, for which no compensation can be 
claimed. Such sacrifices of time or personal service, or of property, 
are compensated for in the protection which the government furnishes 
for their rights of person and of property. Hence, whenever, in the 
judgment of the legislature, it becomes necessary to require the services 
of jurors in carrying on the courts, their services may be required, and, 
if need be, even without compensation; but this must be required in 
pursuance of laws enacted for that purpose by the legislature. But in 
the present case the legislature has not thought proper to require 
the services of jurors without compensation; they have only required 
parties litigant, in whose immediate service the jurors may be engaged, 
to make compensation by way of costs. If it should happen that no 
compensation is received in cases where the losing party is unable to 
pay, it is no greater sacrifice than many t others are required to make 
for the common good.” 63, 174. l Neely v. The State. 1874. 

Right to Take Property for Public Use — Compensation. 

Right of Eminent Domain Can be Exercised by the State for the Pub¬ 
lic Good Only — Not for the Benefit of any Individual — Land May be 
Condemned for the Building of a Grist Mill for Public Use — Miller a 
Public Servant.— Green, J.: “The affairs of a State can not be admin¬ 
istered in the most beneficial manner if it has not the right, upon par¬ 
ticular occasions, of appropriating to its own use portions of the prop¬ 
erty subject to its dominion. The necessary existence of this right 
creates a fair presumption that the State, in granting the land to indi¬ 
vidual citizens, does it with this reserve implied. This right of disposi¬ 
tion is the eminent domain. Yattel, lib. 1, ch. 20, sec. 244. But although 
this right does exist, and the government may take private property, 
allowing just compensation, Blackstone says it is an exertion of power 
which is indulged with great caution. It is only for public uses the 


1 See same case, art. 1, sec. 6, p 17. 



EMINENT DOMAIN. 


207 


State is authorized to exercise it; and because the interests of the com¬ 
munity require that, for the good of the whole, the private right must 
be yielded. It is a power never exercised for the benefit of an indi¬ 
vidual. Therefore the courts have uniformly held that the State has no 
right to take one man’s property and give it to another. 2 Dallas, 310. 

“Upon these principles the Act of Assembly of 1777, ch. 23, pro¬ 
ceeds. The first section of that act declares that ‘ every water grist 
mill which shall hereafter be built, that shall at any time grind for toll, 
shall be held and deemed, and is hereby declared to be, a public mill.’ 
The 10th section provides that the miller shall grind according to turn; 
that he shall grind the grain well, if water will permit; that he shall 
take no more than an eighth of the grain for grinding; and prescribes 
penalties if he violate any of these provisions. The 11th section pre¬ 
scribes the kind of measures the miller shall keep, aud annexes a pen¬ 
alty for keeping false measures. The Act of 1819, ch. 23, following up 
the intention and meaning of the Act of 1777, ch. 23, exempts the keep¬ 
ers of grist mills from militia duty, from serving as jurors, and working 
on roads. 

“I quote these provisions of the law to show the character of the 
use for which the citizen’s property is taken, when a part of his land is 
condemned for the purpose of buildiug a grist mill. It is emphatically 
a public use for which it is required, and to which it is appropriated. 
The grist mill is a public mill. The miller is a public servant. He is 
allowed a compensation for grinding. His duties as a miller are pre¬ 
scribed, and penalties are imposed for a violation of any of those duties; 
and he is exempted, in consequence of his character of miller, aud for 
the benefit of the public, from the performance of certain duties to 
which other citizens are subjected. It will appear from what has been 
said, that when an acre of land is taken from auy citizen for the pur¬ 
pose of erecting a grist mill, although the title be vested in another cit¬ 
izen, yet that vestiture is for a public use, and is wholly different from 
the case of taking property from one man and giving it to another for 
his private benefit only. 

“The question now occurs, Is this application of the character con¬ 
templated by the act of 1777, ch. 23? I think it is not. The petitioners 
say they are desirous to build a grist mill, saw mill, and paper mill. 
For the erection of these works they ask leave. For these purposes 
they ask to have Harding’s land vested in them. The saw mill aud 
paper mill have no public character; the erection of these mills would 
be wholly for the private use of these petitioners. To take Hardiug’s 
land for such use would be unconstitutional. The ’Act of 1777, ch. 23, 
contemplates no such violation of the rights of one man for the private 
benefit of another.” 11, 52. Harding v. Goodlett. 1832. 


1 T. & S., 1908; M. Ji V., 2651. 



208 


TENNESSEE CONSTITUTIONAL LAW. 


This Clause Construed — State Has Right to Take Property — Citizen 
Has Right to Just Compensation for Property Taken for Public Use — 
How, and in What Way to be Made — Incidental Benefits and Advantages 
Not to be Considered — True Measure of Damages. — CARUTHERS, J.: “It 
would, at this day, be worse than useless to enter into a discussion of 
the existence and the extent of the right of eminent domain, and to 
prove that it is inherent in this and all other governments. That is now 
well settled, and admitted on all hands to exist in every State and 
country. No one now questions the right of the State to take private 
property for public use, against the consent of the owner. Questions 
frequently arise, and may come up again, as to the extent and right 
exercise of this conceded power. But it is not controverted that it 
applies to the case of public roads, and that railroads, whether con¬ 
structed by the State or chartered companies, are of that character. 
The land of the plaintiff has been taken for this purpose, and was, 
therefore, legally and rightfully taken. But he has a corresponding 
right, which is as clear, well guarded, and indisputable as the other — 
a claim for the value of his property. The State may take his property 
for the public use, but the State must see that the public pays him for 
it. The people, in whom the sovereign power properly resides in this 
free country, were not willing to leave this dangerous, though essential, 
right of eminent domain (a power to deprive a man of his property 
against his consent) unguarded by barriers of a permanent nature— 
inserted in their Constitution restrictions upon it. They impliedly dele¬ 
gate the right, but protect the citizen, and secure to him the value of 
his private property. The provision for this purpose, in the Federal 
Constitution, is: l Nor shall private property be taken for public use 
without just compensation.* Amendments, art. 5. 

“But this, as well as other provisions of the same character, are 
intended solely as limitations on the exercise of power by the general 
government, and is not applicable to the legislation of the States. The 
State Constitutions are framed by different persons, and have distinct 
objects in view. The State governments are not restricted by the limi¬ 
tation of a power expressed in general terms in the Constitution of the 
United States. The States must be included in terms, or necessary 
implication, in such limitation or negation of powers, or they are not 
affected. Barrow v. The Mayor of Baltimore, 7 Pet., 243; 2 J. J. Mar, 
45. The Constitution of the United States can not, therefore, be looked 
to for the rule to govern us in this case. But the people of this State, 
and perhaps most, if not all, the others, being equally jealous of the 
abuse of power, saw proper to restrict and limit the power of the State 
government on the same subject. Our people, in their State convention, 
make this provision: ‘No man’s particular services shall be demanded, 
or property taken, or applied to public use, without the consent of his 


EMINENT DOMAIN. 


209 


representatives, or without just compensation being made therefor.’ 
Art. 1, sec. 21. The power to take private property for ‘public use’ is 
here impliedly admitted; and the legislature undoubtedly possess it 
with the limitation prescribed — that is, by making just compensation. 
This is only in affirmance of the great principles of the common law. 
The important, and only, question in this case, is, What is meant by 
‘just compensation V How is it to be ascertained; and how, when, and 
in what paid? When this is settled upon a fair construction of that 
instrument, it must prevail, and no act of assembly can change or alter 
it. All laws are subordinate to this supreme law, and must yield to it, 
as they are null and void when they come in conflict with it. It follows, 
therefore, that if the legislature attempted, in this charter, to substitute 
any other compensation for private property taken for this road, or 
directly, or by indirection, deprived the citizen of that ‘just compensa¬ 
tion,’ in whole or in part, which is secured in the organic law, it has 
transcended its authority and trespassed upon sacred ground. 

“If it should be our opinion that this has been done, it becomes an 
imperious duty, delicate and unpleasant as it may be, to sustain the 
Constitution, which we have sworn to support, with a firm hand. That 
must stand, no matter what else may fall. It must be guarded with 
untiring and sleepless vigilance from all attacks. Upon the judiciary 
this important duty devolves. The people can only look to this depart¬ 
ment of the government for protection, when their constitutional rights 
are invaded. It should be a pleasant, though delicate, duty, to those 
they have thus entrusted with the power, to exert it on all proper occa¬ 
sions for their security against wrong. Then, what is the power of the 
State, and the rights of the citizen, in the question now before us? The 
former may take the private property of the latter, for public use, as 
has been done in this case. The citizen has a concomitant right, 
founded in the Constitution, to a ‘just compensation.’ How is this 
right to be asserted? It is certainly the duty of the government to 
provide some fair and proper mode of ascertaining the value of the 
property taken, where it can not be agreed upon by the parties, and to 
make provision, also, for the payment, when it is ascertained in the 
mode and manner contemplated by the Constitution. The charter of 
the defendant was granted in 1845, ch. 1. The twenty-fourth section 
regulates the mode of ascertaining the damages to individuals, and the 
manner of compensating them for lands taken for the road. It pro¬ 
vides that where the land can not be purchased, or the price agreed 
upon, ‘the same may be taken at a valuation, to be made by five com¬ 
missioners, or a majority of them, to be appointed by the Circuit court 
of the county where some part of the land, or right of way, is situated/ 
who shall take an oath ‘faithfully and impartially ’ to discharge the duty 
assigned them. In making the said valuation the said commissioners 


14 


210 


TENNESSEE CONSTITUTIONAL LAW. 


shall take into consideration the loss or damage which may accrue to 
the owner or owners, in consequence of land being taken or the right 
of way surrendered, and also the benefit or advantage he may receive 
from the erection or establishment of the railroad, or work, and shall 
state particularly by the nature and amount of each, and the excess of 
loss or damage over and above the benefit and advantage shall form the 
measure of valuation of said land or right of way. The proceedings of 
said commissioners, accompanied with a full description of said land, or 
right of way, shall be returned, under the hands and seals of a majority, 
to the court from which the commission issued, there to remain of 
record.’ Either party may appeal and have a new valuation by a jury 
in court, where verdict shall be final unless a new trial is granted. ‘And 
the lands, or right of way, so valued by the commissioners or jury, 
shall vest in the said company in fee simple, so soon as the valuation 
may be paid, or, where refused, may be tendered.’ It is further pro¬ 
vided that an appeal is not to stop the work, nor can the same be 
delayed by injunction or supersedeas. But in case the appeal is by the 
company, surety must be given to pay whatever may be awarded in the 
court. Here is a full and vigorous exercise of the power of eminent 
domain. The fee simple title is vested in the corporation. No objec¬ 
tion is made, nor do we see any, under the construction that a jury trial 
in the regular common law mode is adopted in case of appeal, to the 
provision made in this section for settling the rights of the parties. 
But the contested and embarrassing question still arises upon the rule 
prescribed in this law for ascertaining the ‘just compensation’ to the 
owner of the land, the use and title of which he is thus forced to sur¬ 
render to the corporation. On the one hand, in making the valuation 
of the land, the ‘loss or damages’ which may accrue to the owner by 
taking the land is to be fixed; on the other, the ‘benefit or advantage’ 
to the owner from the erection of the road is to be estimated, and the 
excess of the former over the latter, in the language of the act, ‘ shall 
form the measure of the valuation of said land’ 

“Is this the measure of ‘compensation’ prescribed in the Constitu¬ 
tion? Was the compensation secured to the owner for the loss of his 
property to be paid in money, or may it be made in other property, or 
incidental ‘benefits and advantages?’ Was it intended that the citizens 
should not only be forced to give up his land for the common or public 
use, but to take in payment for it anything it might suit the party 
taking it to offer? If such be the true meaning of the Constitution, it 
is certainly a poor protection for private rights against the exactions of 
power, and is only calculated to excite false hopes of security. By the 
supreme law, the legislature are empowered, where, in their opinion, 
the good of the whole people requires it, and for the use and benefit of 
the whole, to compel him who owns the property to give it up, upon 


EMINENT DOMAIN. 


211 


the payment to him, by the same public for whose use it is taken, a 
‘just compensation/ or, in other words, a fair price, or the value in 
money, for the property taken. He can not be paid off in ‘benefits and 
advantages/ which are thus forced upon him against his consent. He 
may be compelled to submit to the encroachment upon his private 
rights, when they come thus in conflict with the public interest, but, 
with the charter of his liberties in his hand, he can say to the powers 
that be, ‘Thus far shalt thou come and no farther/ In the appropria¬ 
tion of the property the public power is exhausted. It can not be 
allowed to prescribe how much and iu what he shall be paid. The value 
of the thing taken must be assessed by a just and proper tribunal, and 
the amount paid in the lawful coin of the United States—in money. 

“ It is a debt against those who take the property, and must be paid 
like all other debts. The creditor, in this case, can not be coerced to 
receive, as compensation, ameliorations of his remaining property, or 
the enhancement of its value, nor any other ‘ benefit or advantage/ 
either real or imaginary, that may be conferred upon him. He may not 
wish to part with a portion of his land to have the price of that which 
remains enhanced. The increase of price, without any improvement of 
its fertility or beauty, is no advantage to him if he does not wish to sell; 
it only increases his public burdens in the way of taxation. What 
others might regard as a great ‘advantage and benefit/ he might con¬ 
sider a decided injury. If his lands are appreciated, and his facilities 
of travel and trade increased, by this improvement, these are benefits 
to which he is entitled, with the community in general, and for which 
he has to pay, in common with others, in taxes and other burdens. But 
there can be no good reason, why any more should be taken from him 
thau others, for these common benefits. Then we arrive at the con¬ 
clusion that the plaintiff is entitled to the value of the land taken from 
him by the defendants, in money, and that this value, when ascertained, 
can not be liquidated, in whole or in part, by any ‘benefit or advantage 1 
he may in fact or by supposition derive from the making of the road, in 
the appreciation of his remaining land, or otherwise. But, on the other 
hand, it would be unjust to make the public pay the enhanced price that 
would result from the fact that the road had been located at that place. 
It is difficult to lay down any very definite rule for the government of 
commissioners and juries on this subject, which will be of easy practical 
application in every case. Yet it is highly important that some principle 
be settled, and the extent of its application to peculiar circumstances 
defined, calculated to produce uniformity, and rid the subject of that 
vague and indefinite character which now seems to perplex the miuds 
of those who have to act upon it. We consider the proper rule to be 
this, that the fair cash value of the land taken for public use, if the 
owner were willing to sell, and the company desired to buy that par- 


212 


TENNESSEE CONSTITUTIONAL LAW. 


ticular quantity, at that place and in that form, would be the measure 
of compensation. It is not in the nature of a wrongful taking, for 
which damages are to be assessed. Nor is it a claim for any wrong or 
damage done; but the appropriation of the property is legal and right¬ 
ful, as much so as if the owner had voluntarily sold it to the company, 
and the only open question was: What is a fair price for the property ? 
What is its value? Now, from this definition of the nature of the 
transaction, it will follow that there can be nothing added to the price 
on account of the unwillingness of the owner to part with his land, or 
to have the improvement there, or because he may have to build fences 
and walls, or be put to inconvenience in getting to his out-buildings, or 
to have them to remove, or such like inconveniences. These things do 
not enter into a just idea of a just compensation for the property 
actually taken, but are incidental to it, and are provided for in another 
form by this charter, as will be presently shown. These considerations 
are not to enter into the estimate of the jury, to enhance the price; 
but, on the other side the value is not to be reduced by the considera¬ 
tion that the improvement about to be made will be advantageous to 
the owner in the amelioration and enhanced value of his remaining 
land, the increased facility in travel or trade it will afford him, or the 
location of a depot or town upon his land. To all these, and such other 
incidental advantages as may result to him, he is entitled, in common 
with other citizens; and for which he pays in taxes and other legal bur¬ 
dens imposed by government. If such special advantage accrue to him 
in consequence of the public improvement and that particular location 
of the road, it is an incident to his right of property, and a benefit for 
which no one has a right to make him account, in fixing the price of 
other property taken against his will. The following circumstances and 
considerations should enter into this estimate of value or compensation: 

“1. The quantity of land taken. It would not be reasonable to fix 
the price of one acre, or the fourth of an acre, at the general rate of 
the whole tract, or a larger quantity. This would be selling by retail, 
and ought to be, at a higher price for the quantity taken. 

“2. The place where the land lies which is thus appropriated, with 
reference to external circumstances. Is it in the country, a village, or 
city? With reference to remaining land, is it taken on the outer line, 
with the bed of the road only on the land, or does it run so as to 
divide the land in a regular or awkward form? Through a garden, 
stable lot, or the family yard ? Between the dwelling house and kitchen 
or under either of them? And, if so, are they of great value, or of but 
little value? Is it so run as to cut off from the main lot a portion of 
ground that for quantity or form is salable, or not? So, upon this 
point, the rule must be as first laid down in general terms ; the quantity 
taken, and place and form in which it is taken, must be looked to in 
fixing its value. 


EMINENT DOMAIN. 


213 


“3. Any general effect that the actual or contemplated erection of 
the railroad, or special effect of the location of it at that particular 
place, may have upon the value of that land, whether it had been to 
improve or lessen the price, is not to form an element or be considered 
in the valuation. If the value is elevated by the work, he should not 
have the advantage of it, because we do not make him account for the 
increased value of the remainder of his land; and if the value is reduced 
by it, he should not suffer, because he is forced to part with his prop¬ 
erty for that purpose, against his will. 

“4. The incidental advantages and disadvantages, benefits and inju¬ 
ries, are to be left entirely out of view. The owner’s unwillingness to 
sell, or to the location of the road on his land or near his house, on the 
one hand, and the necessity the public is under to have the land at that 
particular place, on the other, are to have no influence on the price. 
The property is to be valued on the same principles and considerations 
as if both parties had agreed upon the sale, and had referred the single 
question of the intrinsic value of that particular property to the commis¬ 
sioners. The consideration for his property to which the owner is entitled, 
being thus ascertained, it must be paid to him in money. To compel 
him to take anything else would render the constitutional guarantee 
ineffectual and delusive. 

“Here the constitutional provision ends; its inhibition upon the gov¬ 
ernment goes no farther. The legislature may make any regulations it 
thinks right and proper for an account or estimate of incidental Moss 
or damage’ or injuries to the landowner. These may consist of the 
necessity created for the building of new fences, the removal of build¬ 
ings, separating him from his spring, well, mills, negro houses, barns, 
etc. And against this may be set off the 1 benefits and advantages’ to 
the owner, in the enhancement of the value of his remaining land of 
the same or any adjoining tract, his increased facilities of travel, etc. 
We think the legislature has the power to do this; and if required by 
the petitioner, the court would be bound, under this charter, to direct 
the commissioners, or, in case of appeal, the jury, to make the estimate 
on both sides, upon the basis here stated. But this must be separate 
and distinct from the valuation of the land for the purpose of ascer¬ 
taining the compensation required by the Constitution, and can not be 
blended with it, or in any way enlarge or reduce it. It is true that the 
nature of the items on both sides of this account would be of a very 
vague and indefinite character, depending, before commissioners, upon 
their opinions upon the view and examination of the ground, and before 
a jury, on appeal, upon the opinions and fancy of witnesses. But for 
that no remedy or definite rule can be furnished which will clear the 
subject of its inherent difficulties. But this enhancement of the price, 
which may be taken into account against the petitioner, must be cou- 


214 


TENNESSEE CONSTITUTIONAL LAW. 


lined, in the estimate, to the lot or tract through which the road runs, 
or to lots or lands which adjoin it, and to such improvement in value as 
is the result of running the road at that particular place, and not to the 
general rise of property in the country, or that neighborhood, produced 
by the public work. That which is common to all should not be charged 
to him, because this is an advantage to which he is entitled as a citizen 
and taxpayer of the State. To these conclusions we are brought by 
what seems to us a fair construction of our own Constitution. And we 
find that we are fully sustained in them by the court of appeals of the 
State of Kentucky, in the case of Jacob v. The City of Louisville, 9 Dana, 
114. In that case it is stated that the same principles had been adopted 
in Sutton’s Heirs v. The City of Louisville, 5 Dana, 28, and in Rice v. 
Nicholasville, Danville & Lancaster Turnpike Company, 7 Id., 81. The 
language used in the Constitution of Kentucky is substantially the same 
as ours on this subject.” 32, 431. Woodfolk v. N., C. & St . L. R. R. 
1852. 

Distinction Between Public Necessity and Public Convenience — Illus¬ 
trations— Power to Take Property, etc., Vested Exclusively in the Leg¬ 
islature, But Courts may Review and Annul Acts Showing Abuse of 
Legislative Discretion in Giving Property of One Man to Another—Con¬ 
struction of Satutes.— Shackleford, J.: “We think the provisions of 
the sections embraced in chapter 10 1 of the Code have no application to 
works designed alone for private enterprise, how much soever they may 
be a convenience to the public. To authorize the taking of private 
property by an act of the legislature, it must be for a public use. 
What is a public use, does not seem to be very clearly defined. Rail¬ 
roads, turnpikes, public roads, canals, etc., are means of intercommuni¬ 
cation between different sections of the State, and are of public use; the 
streets and alleys of a city or town, are necessary for the use and con¬ 
venience of the citizens. 

“In the case of the West River Bridge Company v. Dick et al., 6 How., 
547, it was held, it was not enough that there is an act of incorporation, 
for a bridge or turnpike, or railroad, to make them public, so as to take 
private property, constitutionally, without the owner’s consent; but 
their uses and objects must be the use of the public, and must, in their 
essence and character and liabilities, be public, within the meaniug of 
the term public use. . . . There is a distinction between a public 

use and a public convenience. To authorize the taking of private 
property for public use, the use must be for the people at large—for 
travelers, for all —and must also be compulsory by them, and not 
optional with the corporators—must be a right by the people, and not 
a favor—must be under public regulations as to tolls, etc., 6 How., 546; 

1 See T. & S., 1325 et seq.; M. & V.. 1549 et seq. 



EMINENT DOMAIN. 


215 


3 Kent, 270. But where it is a public convenience, not a necessity, the 
right to take private property does not exist. The incorporation of a 
hotel company in a city, with right to construct lines of a railroad from 
the hotel to the river or depot, for the accommodation of the guests of 
the house, would be a public convenience, but would not authorize the 
legislature to take the private property of the citizens of the town, 
whereon to erect the hotel, or to lay the lines of railroad. Churches 
and school houses are public conveniences, but no one ever heard of 
private property being taken for such purposes. . . . This company 

is . . . granted the right and privilege to erect . . . such 

sheds, etc., as may be necessary for the prosecution of their business of 
hauling freight. 

“The erection of these sheds and railroad tracks have no public 
character, but are wholly for the use of the petitioners. It is an 
attempt to grant to an incorporated company, for individual purposes, 
private property dedicated for the use of the citizens of Memphis. It 
has been held and used for more than a fourth of a century for the pur¬ 
poses for which it was given by the grantors. Though the owner in fee 
holds lands subject to the right of eminent domain in the State, to be 
taken for public purposes, he can only be divested of that right when 
the exigency arises, and it must appear it was for a public use before he 
can be deprived of it, and that by just compensation. 

“It is insisted for the petitioners, it is the exclusive province of the 
legislature to determine whether the purpose or object for which prop¬ 
erty is taken is for a public use; and it is not within the judicial depart¬ 
ment of the government to revise or control the intention of the 
legislature, when expressed in the form of a legal enactment. This 
question is one by no means free of difficulty. The right of eminent 
domain remain's with the sovereign people of the State, and they have 
the right to resume the possession of private property in the mauner 
directed by the Constitution and statute laws of the State. Whenever 
the public necessity requires, it shall be taken for public uses; but who 
is to judge of this necessity? Mr. Kent, in his Commentaries, says: 
‘It must undoubtedly rest, as a general rule, in the wisdom of the 
legislature to determine when the public uses require the assumption 
of private property; but if they should take it for a purpose not of a 
public nature—as if the legislature should take the property of A and 
give it to B —or, if they should vacate a grant of property, or of a 
franchise, under the pretext of some public use or service, such cases 
would be gross abuses of their discretion and fraudulent attacks on 
private right, and the law would be clearly unconstitutional and void. 
Real property, and the rights and privileges of private corporate bodies, 
are held by grant or charter from the government; and it would be a 
violation of contract repugnant to the Constitution of the United States 


216 


TENNESSEE CONSTITUTIONAL LAW. 


to interfere with private property except under the limitations which 
have been mentioned.’ 2 Kent, 340. In support of this position he 
cites 19 Wend., 659; 16 Mass., 330; 3 Yer., 41; 8 Dana’s Rep., 289; 
1 Reese’s South Carolina, 381; 18 Wend., 14; 11 N. H., 19; which, we 
think, fully sustain the rule. 

“The rule, as announced by Mr. Kent, is correct upon principle and 
authority. The right of private property is under the protection of the 
Constitution, and the legislature has no power to take it for any private 
purpose, or to transfer it to another, whether indemnity be provided or 
not. Any law which has the effect to transfer this right against the 
owner’s consent is void, no matter under what pretext of policy or con¬ 
venience it may be passed. 2 Swan, 549; 5 Watts & Serg., 171; 5 Page, 
146. . . . There is nothing in the charter showing it to be for a 

public use; there is no restriction on their charges for services; no 
duties are defined; no penalties for a violation of their duties; no regu¬ 
lations of toll. They are left free to act as private persons, in any 
manner that will best promote their interests. 

“In every case involving the constitutionality of a law passed by 
the legislature, it is entitled to the most careful consideration of the 
court, and the acts of the legislature should be examined with every 
presumption in favor of their validity. But when the court is satisfied 
they are in violation of the Constitution, it is the imperative duty of 
the court to declare them void. . . . This attempt by the legislature 

to exercise the right of eminent domain . . . falls within that class 

of cases referred to by Mr. Kent. It was an abuse of that discretion 
vested in the legislature, and an unauthorized violation of private rights. 
In such cases courts have no discretion; they must declare such acts 
void.” 44, 422. Memphis Freight Co. v. Mayor etc. of Memphis. 1867. 

Duties of the Legislative and Judicial Departments in Questions of 
Eminent Domain, Distinguished — Property May Be Taken Without 
Notice, When — But Notice of Assessment of Compensation is Com¬ 
pulsory—Delegation of Power. — Smith, J.: “The taking of private 
property for public use, is an act of the political power of the State. 
The necessity or utility of the taking is a question for the legislative 
department of the government, and exclusively in the control of that 
department. So far as relates to the question of the utility or necessity 
of the taking, the courts have no jurisdictive authority, and can exer¬ 
cise no control. Whether the purpose or use for which it is taken is a 
public use, is another question; and this is considered within the cogni¬ 
zance of the judicial department. Cool. Const. Lim., 538, n. 3, and 540; 
21 N. Y., 597; 27 Missouri, 373; 4 Cold., 406. The legislature has the 
power to take the private property for public use by statute direct, or 
may delegate the power to agents who may exercise the same discre¬ 
tion, in such manner as the empowering statute may prescribe. The 


EMINENT DOMAIN. 


217 


owner of the property can not contest the right to take the property 
for a public use. Whether the necessity or utility exist, he can not 
controvert. The power is absolute with the legislative department of 
the government, and does not depend on the will of the owner. The 
property may be taken, if the legislature so choose, without any notice 
to the owner of the taking or proceeding by which it is taken. The 
right to notice of the assessment of the compensation is said to be 
* otherwise. To that notice the owner is considered to be entitled of 
right. Sedg. Stat. and Const. Law, 519; 2 Mich., 427; Cool. Const. 
Lim., 563. It may be taken before compensation be actually paid to 
the owner. But, under the Constitution of the State, and also of the 
United States, the compensation must be made. If an adequate remedy 
be provided, by which the owner can enforce compensation, that is 
enough to authorize the property to be taken in the first instance. 
Such is the settled construction put upon the constitutional law on this 
subject. 2 Kent Com., 340, n.; 2 Dev. and Batt., 451; Cool. Const. 
Lim. . . . 

“When the legislature takes, or authorizes the taking of private 
property for public use, as has been before stated, the courts have no 
power to control the discretion of the legislature, so far as relates to 
the necessity or utility for taking; and the taking, if for a public use, 
must be deemed by the courts to be for the public welfare. The estab¬ 
lishing of a public highway must be assumed to be for the public wel¬ 
fare. The public welfare requires it to be laid out. It may be done 
summarily, without notice of the taking to the owner, without his con¬ 
sent and against his will, before compensation, paid or assessed; and the 
taking is not utterly void; certainly not so void in the first instance as 
to make the agents of the State trespassers for the taking. ... It 
is not designed here to apply the rulings of this case to the proceedings 
for taking private property for public use other than cases of the kind 
in hand, where the taking and use is absolutely for the public. How 
far they may be applicable to proceedings where private property is 
taken for corporations, to some extent of private character, as railroads 
and the like, and where the property is to be used for a franchise, 1 and 
granted such corporation, it is not the purpose of this opinion and 
decision to determine.” 46, 160. Anderson v. Turbeville. 1868. 

Compensation—How Ascertained — When to Be Paid. 

Compensation Need Not Be Made Until After Property is Taken if 
Payment be Absolutely Certain. — SNEED, J. : “It is the approved opinion 
that property in this country, when taken for public use, need not be 
paid for before being taken. It is enough that provision be made for 
compensation afterwards, provided the payment be absolutely certain. 

1 For instance, see Memphis Freight Co. v. Memphis, p. 21J. 



218 


TENNESSEE CONSTITUTIONAL LAW. 


Smith v. Helmn, 7 Barb., 416; 18 Wend., 667; Anderson v. Turbeville. 
The rule is, we think, well stated by Chancellor Walworth, that the 
compensation must be either ascertained and paid before the property 
is appropriated, or an appropriate remedy must be provided, and upon 
an adequate fund, whereby the owner may obtain his compensation 
through the medium of the courts of justice. 18 Wend., 9. . . . 

“It is stated as settled and fundamental doctrine that government 
has no right to take private property for public purposes without s 
giving a just compensation, and it seems to be necessarily implied that 
the indemnity should, in cases which admit of it, be previously aud 
equitably ascertained, and be ready for reception concurrently in point 
of time with the actual exercise of the right of eminent domain. This 
point was ably discussed in Thompson v. Grand Gulf R. R. Co., 3 How. 
Miss., 240, and the decision was that compensation must precede the 
seizure. 2 Kent, 409. Such seems to be the opinion of the learned 
commentator last cited, but upon this point the authorities are in con¬ 
flict. Vide 12 Serg. and Rawl., 366; 20 Johns., 745; 6 Wend., 634. We 
have already seen, however, that in this State the indemnity needs not 
precede the seizure, provided the statute secure it beyond all contin¬ 
gency. And the best security guaranteed under defendant’s charter is 
that the title in the fee remains in the owner until the indemnity is 
paid.” 54, 537. White v. N. & N. W. R. R. Co. 1872. 

Benefits Accruing to Other Lands of Proprietor Not to be Considered 
—Mississippi Act Special Legislation.— SNEED, J.: “The defendant, 
Stovall, owned real estate disconnected from the tract in question aud 
about one mile distant from it. The charter of the Mississippi Railway 
Company authorizes the jury to take into consideration the benefits 
accruing to other lauds of the proprietor along the line, but not part 
and parcel of the tract appropriated. Under this provision, the plaintiff 
asked instructions that the benefits to other lands of defendants might 
be set off against the incidental damages claimed by defendants. These 
instructions were properly refused. This provision of the plaintiff’s 
charter is peculiar to itself, and is a departure from the general rule 
upon the subject. It is special legislation aud obnoxious to the consti¬ 
tutional objections urged against it. The general flaw provides, that in 
estimating the damages the jury shall give the value of the land without 
deduction, but incidental benefits which may result to the owner by 
reason of the proposed improvement may be taken into consideration 
in estimating the incidental damages. Code, section 1338. In the case 
of Woodfolk v. The Nashville & Chattanooga Railroad Company, 2 Swan, 
422, it was settled that the ‘just compensation’ of the Constitution was 
the fair value of the land appropriated, which must be actually paid in 


M. & V., 1562. 



EMINENT DOMAIN. 


219 


money, and can not be discharged in benefits or ameliorations. But 
this constitutional guaranty being secured, it is competent for the legis¬ 
lature to award to the citizen, independently of the actual value of the 
land taken, his incidental damages for the taking, and to prescribe the 
manner of their assessment, and allow ameliorations and benefits to 
stand against it. But this applies to the tract upon which the right of 
eminent domain is actually enforced, and not to such benefits as accrue 
to other lands of the party, or to the public at large.” 59, 4. P. & M. 
R. R. Co. v. Stovall. 1873. 

Statutory Provisions Concerning Compensation — Restrictions. — 
Deaderick, J., held: “This constitutional provision ‘does not exact that 
the compensation shall precede the taking; it suffices that the law 
authorizing the taking provides for the compensation aud designates an 
impartial tribunal for its assessment; and it is competent to restrict 
the property owner to a given time for the enforcement of his rights.’ ” 
59, 621. Simms v. C. & L. R. R. Co. 1874. 

Remedy Provided by Sec. 1571, M. & V., Not Exclusive — Court of 
Equity. — Freeman, J., held: “The ’statutory remedy provided by sec. 
1347 of Code, is not exclusive, and the land owner is not bound to 
exhaust that remedy before resorting to a court of equity.” In deliver¬ 
ing the opinion, he said: “Our Bill of Rights is imperative, sec. 21. . 

‘Compensation must be secured beyond all contingency/ 7 Heis., 
538, 541. That is, it must be secured to be paid, or else it can not be 
said that ‘just compensation’ has been made therefor. In fact, a strict 
construction of the language would require actual payment in cash 
before the taking. It is certain, however, this language can not be com¬ 
plied with, either in letter or spirit, where the land is entered upon and 
taken, and not only no compensation paid or secured, but the party 
required to engage in a fruitless litigation with an insolvent company, 
the result of which would be a judgment only, but no compensation 
whatever. This would be to take the citizen’s land and impose the 
burden and expense of a lawsuit only by way of compensation, and 
make the constitutional provision an illusion.” 81, 671. Parker v. E. 
T., Va. & G. R. R. Co., et al. 1884. 

Measure of Damages — What Constitutes Just Compensation for 
Land Taken for Public Use. — CALDWELL, J., held: “The ‘just compensa¬ 
tion’ required by our Constitution and laws 2 to be made for lands taken 
from the owner for public use consists ot the lair market value, in cash, 
of the lands actually taken at the date of their appropriation, estimated 
as the owner were willing to sell and the taker desired to purchase that 
particular quantity of land at that place and in that form, together with 
such incidental damages as result, naturally and proximately, to other 


M. & V., 1571. 


2 T. & S., 1338; M. & V., 15G2. 



220 


TENNESSEE CONSTITUTIONAL LAW. 


lands of same land owner at the date and by reason of such taking, 
with interest from the date of the actual appropriation of the lands.” 
88, 510. Alloway v. Nashville. 1889. 

Persons Entitled to Compensation. 

Persons Under Disability Entitled to Compensation.— CARUTHERS, J.: 
“The right to take land under the power of eminent domain is not 
restricted by any disabilities of the owner. That would defeat the 
object of the power, which is, the public necessity to take it for the 
general good. The power of the State to appropriate the property is 
unquestioned, hut the right of the owner to be paid for it, is secured 
by the Constitution. The power of the State is subject to no restric¬ 
tions but that of making compensation. This inherent authority of the 
government to take private property for public use is exercised without 
any reference to the private ownership. The existence of infancy, 
coverture, or other disability, presents no obstacle. The correlative 
constitutional right to demand and receive the value of the property 
can only be asserted by the true owner.” 40, 65. E. T., Va. & G. 
B. B. v. Love. 1859. 

Municipal Corporations—Power to Take Property , etc. 

Compensation, Measure of—Fair Cash Value—Benefits—Damages.— 
Nicholson, J., held: “The method prescribed for the appropriation of 
private property for public use by the State, uuder the right of eminent 
domain, is alike applicable to a municipal corporation. If private prop¬ 
erty is taken for public use, the measure of just compensation, to which 
the owner is entitled under the Constitution, is the fair cash value of 
the land, if the owner were willing to sell and the corporation desired 
to buy that particular quantity at the place and in the form taken. The 
incidental damages or benefits which result from the use to which the 
land is to be applied, must form no element in the computation of the 
owner’s compensation.” 

In delivering the opinion, he referred to the case of Woodfolk v. 
N. & C. R. R. Co., and said: “Although the rules laid down in the case 
referred to have not been adopted and followed in some of the other 
States, they have been pursued uniformly in this State, and we are 
aware of no good reason for departing from them at present.” 56, 508. 
City of Memphis v. Bolton et al. 1872. 

Municipal Corporations — Police Power — Removing Nuisances.— 
Deaderick, J., held: “The *act of the legislature which empowers tax¬ 
ing districts to condemn and abate as nuisances all houses which shall 
be found unhealthy, is not in violation of this provision” which “has 
no application as a limitation of the exercise of those police powers 
which are necessary to the safety and tranquility of every well ordered 
community.” 82, 622. Theilan v. Porter et al. 1885. 


1 Acts 1879, pp. 15 and 98. 



EMINENT DOMAIN. 


221 


Property Outside of City — Right to Compensation.— TURNEY, J., 
held: “A person who has occupied and improved property outside of a 
city has right to compensation where the city has subsequently extended 
its limits, and in grading a street made necessary by such extension, 
has knocked down his fences, and caused surface water to overflow his 
property and injure his cellar, walls and shrubbery.” 85, 99. Gray v. 
Mayor etc. of Knoxville. 1886. 

Public Roads—Private Way. 

Statute Requiring Damages to be Paid or Secured Before Road is 
Opened Does Not Apply to Road Already Opened — Indictment for 
Obstruction. —The County court at its April session, 1822, appointed a 
jury of view to lay off a road through Wetherspoon’s land. This was 
done and the court, at its July session, established it as a public high¬ 
way. At the April session, 1824, Wetherspoon applied for an order that 
a jury might be empaneled to view the road and assess his damages 
under the *Act of 1824, ch. 1, sec. 19. This was done. Afterward, he 
moved the court to either make the trustee pay him the amount of 
damages or change the location of the road. Both requests being 
refused, he ran a fence across the road, was indicted and fined. 

Catron, J.: “It* is contended, on the part of the plaintiff in error, 
that, by the Constitution, he can not be deprived of his property for the 
public use, without compensation being made therefor; and until the 
compensation is made, he is authorized to occupy and enjoy the exclu¬ 
sive possession of the property. This consequence by no means follows 
the constitutional provision. It is not a condition precedent that the 
government shall pay before the property appropriated to public pur¬ 
poses is taken possession of and used by the State. Craigie v. Miller, 
G Mass. Rep., 7. The manner of obtaining compensation is pointed out 
by the *Act of 1804, ch. 1, sec. 19. The defendant below attempted to 
obtain it, but failed, before the County court. If he was dissatisfied 
with the decision, it was iu his power (provided he was injured) to take 
his cause by certiorari to the Circuit court, and by appeal in error to 
this court, and have the errors corrected. This he failed to do, and 
therefore he has no right to complain. Yet the proceedings to obtain 
damages were collateral to the establishment of the road, with which 
proceedings the public had no concern. The right of the community 
to the use of the highway established by order of the Circuit court, 
upon appeal to that court, in February, 1824, was complete. The order 
was iu full force, when the road was obstructed, and conclusive upon 
all persons, as to the establishment of the road, until reversed, or the 
road discontinued by the proper authority—the County court; and an 

i For the two acts referred to, see H. &C., vol. 1, p. 289; Code 1858,1189,1190; T. & S., 1189,1190; 
M. & V., 133:?, 1334. 



222 


TENNESSEE CONSTITUTIONAL LAW. 


excuse for its obstruction, is not within the recollection of this court, 
unless it should be found in the Act of 1825, ch. 17, which is mainly 
relied upon in the defense, and which we will examine. 

“The road was finally established in February, 1824; the act referred 
to was passed the 31st of October, 1825, nearly two years afterwards. 
It provides, ‘that where a jury of view shall have been ordered by the 
court, marked and laid off a road over the land of any person, and the 
owner of the land shall consider him aggrieved thereby, and shall have 
obtained, agreeably to the laws in force, a jury to assess the damages 
he may sustain thereby, that it shall not be lawful for such a road to be 
established as a public highway until the damages so assessed are paid 
to the person injured, or so provided for as to answer the payment 
thereof.’ 

“It is contended that this is a retrospective law, and covers the case 
of the plaintiff in error. Whether the law is retrospective or not is 
unnecessary for the court to determine; forasmuch as it plainly applies 
to cases where orders are made by the County court to have roads 
reviewed, preparatory to their establishment by confirming the order. 
If in this case the jury to assess the damages had been applied for, and 
reported the damages, before the road was established, then a fair case 
probably would be presented to the court for the application of the pro¬ 
visions of this statute; and the payment of the money, or security 
thereof to the party injured, would have been a condition precedent to 
the establishment of the highway; but the legislature could never have 
meant to annul roads already established. If the desired construction 
were put upon the act, it is very probable some of the oldest and most 
public highways in the State might be shut up with impunity. What 
practice the County courts will adopt upon this statute it is not for this 
court to say; but that it was intended to apply to cases where a jury 
of view had condemned the ground over which the highway should lie, 
before such highway was finally established by order of the court, and 
an overseer thereof appointed is certain — the Act of 1824 having made 
ample provision for the assessment of damages, in cases of injury sus¬ 
tained by reason of the location of the roads, after the same are opened 
by order of the court; and it is believed the only alteration intended to 
be made by the Act of 1825 was the payment of the damages, or the 
security of them to be paid, as a condition precedent to the opening of 
the road; and, therefore, that it does not apply to this case, where the 
road had been already opened.” 8,119. Wetherspoonv. The State. 1827. 

Right to Private Property Protected by This Provision — Legislature 
Has No Power to Take Land of A that B May Have a Private Way Out 
From His Land, Whether Indemnity be Provided or Not. — The Act of 
1811, ch. 60, conferred upon the County court the power to grant “a 
private way in case the lands of any person be surrounded by the lands 


EMINENT DOMAIN. 


223 


of any other person or persons who refuse to allow a private road over 
it.” Totten, J.: “A way of necessity is but a way by grant. If a man 
sell me land that is wholly surrounded by his own, I am entitled to a 
way of necessity over his land, to come to my own, though it was not 
expressed in the grant. It is implied as an incident to the grant, and 
passes under it. For, without the way, the grant could have no effect; 
and it is a general rule that when the use of a thing is granted, every¬ 
thing is granted which is necessary to its proper use and enjoyment. 
Co. Lit., 56; 2 Com., 56. Sergeant Williams says the way of necessity is 
so called because it is a necessary incident to the grant; and he is of 
opinion that it is founded entirely upon grant. 1 Saund., 323, note 6; 3 
Kent’s Com., 424. It is not, therefore, to be taken in a general and inde¬ 
pendent sense; as, that it is necessary for me to have a right of way 
over my neighbor’s land. I can only have it as in case of other property 
—by his consent, express or implied. A way of necessity, therefore, 
like other private ways, is founded in grant by the owner of the land 
over which it passes; and it can have no existence upon any general 
idea that it is convenient, or even necessary, to a person to have a pri¬ 
vate way. Now, the statute confers upon the County court the power 
to grant a right of way, against the will of the person who owns the 
land. It takes from him, in invitum, a part of his private estate, and 
gives it to another, as a private right, for such indemnity as a jury may 
assess. Now, we deny that any such power exists under the Constitu¬ 
tion of the State. The right to private property is under the protection 
of the Constitution, and is to be held as sacred and inviolable. The 
legislature has no power to take or invade it for any mere private pur¬ 
pose, or to transfer it from one person to another, against the will of 
the owner, whether indemnity be provided for it or not. The will of the 
owner is, in this respect, stronger than the legislative power, and if he 
refuse to grant the private way, we are not aware of any power by 
which he may be enforced to grant it. If it could be held a valid power 
in the present instance, so it could be held in many others, under the 
pretext of necessity, policy or convenience. On the contrary, we con¬ 
sider it a settled doctrine that a law which is intended to have the effect 
to transfer the private property of one man to another, against his will, 
is powerless and void, no matter under what pretext of policy or con¬ 
venience it may be made. Vide Bill of Rights; 2 Kent’s Com., 13, 339; 
Wilkinson v. Leland, 2 Pet., 659; Varick v. Smith, 5 Paige, 5; Hoke v. 
Henderson, 4 Dev., 15; Harding v. Goodlett, 3 Yerg., 41. Nor can the 
power insisted on in the present case be found in the right of eminent 
domain. This right, inherent in the State, cau only be exercised for the 
public advantage, and not for that of any mere private person. ‘The 
right of eminent domain or inherent sovereign power,’ says Mr. Kent, 
‘gives to the legislature the control of private property for public 


224 


TENNESSEE CONSTITUTIONAL LAW. 


uses, and for public uses only .’ 2 Kent, 339. ‘It undoubtedly must rest/ 
says the same author, ‘as a general rule, in the wisdom of the legis¬ 
lature, to determine when public uses require the assumption of private 
property; but if they should take it for a purpose not of a public 
nature—as, if the legislature should take the property of A and give it 
to B—or, if they should vacate a grant of property or of franchise, 
under the pretext of some public use or service, such cases would be 
gross abuses of their discretion, and fraudulent attacks on private rights, 
and the law would clearly be unconstitutional and void. 7 2 Kent’s Com., 
340. In Taylor v. Porter, 4 Hill, 140, the precise question now before 
us was ably considered, and it was held that a statute similar in every 
respect to ours was unconstitutional and void. Mr. Kent, referring to 
the judgment in that case, considered that it was founded on just prin¬ 
ciples, and fully approved it. 2 Kent’s Com., 339, note c.” McKinney, 
J., dissented on the constitutional question. 32, 548. 1 Clack v. White. 
1852. 

Opening 1 and Changing Public Highways—Road Law of 1889 Uncon¬ 
stitutional.— The act under consideration was that of 1889, ch. 71, sec. 8. 
Turney, J., held: “The ‘road law’ of 1889 is unconstitutional to the 
extent that it provides for the taking of private property for public use 
in opening and changing the public highways. The fatal defect of this 
statute is its failure to designate by whom the land owner’s damages 
shall be paid, and to provide an effectual remedy to enforce payment 
thereof.” He said: “The purposes of the Constitution are to place the 
citizen in a position to demand and receive compensation; that the 
enabling statutes shall point out the persons who shall pay the compen¬ 
sation, and, at the same time, furnish the remedy for the enforcement 
of that payment. None of these things are done by the eighth section 
of the act, and it is therefore unconstitutional and void.” 89, 157. 
Tuttle v. Knox County. 1890. 

Impressment of Property in Time of War. 

Military Commander Has No Authority to Impress Property — Must 
be Done by Legislature.— Barrow was a forage master of Major-General 
Carroll’s division of Tennessee militia in the service of the United States, 
and the division beiug in great need of forage and corn, the general 
ordered him to secure it “by pressing” if it could not be had otherwise. 
Pursuant to this order, Barrow “pressed” corn and fodder belonging to 
Page, who sued Barrow. Barrow demurred, and the Circuit court sus¬ 
tained the demurrer. On the question whether, under the circum¬ 
stances, Barrow was justified in making the impressment he did, the 
court said: “There is a law, founded in extreme and invincible public 
necessity, which justifies the officer, in promoting the public welfare, to 


1 Reaffirmed without discussion in Rice v. Alley, p. 42. 



EMINENT DOMAIN. 


225 


use and even destroy private property without any precedent legal cere¬ 
monies; such as demolition, or even burning, of houses to render an 
attack upon an enemy successful, or to defeat his attempts. For like 
reasons also may the ground of an individual be occupied, and fortifica¬ 
tions be erected and intrenchments be made in it. There sains populi 
est supremo, lex. Com. Dig., title Trespass, allow such cause to be a 
justification. This is the law in extraordinary cases. In all other cases 
we have a positive and a fundamental law. It is contained within the 
twenty-first section of our Bill of Rights. . . . 

“In the case of an impressment in the late war, caused by a British 
officer in Canada, the injured party recovered heavy damages against 
him, though he endeavored to cover himself by the plea of necessity. 
In the English law, though the impressment of seamen is tolerated by 
long usage till deemed a part of the common law, yet there are no 
instances of legal allowance of the impressment of private property, 
nor any conversion of it to public uses, but by a previous law for the 
purpose and the intervention of a jury. This clause of our Constitution 
means that impressments may be made when the legislature shall be of 
opinion that the public necessity requires them. And when they have 
authorized them by law, under such regulations to prevent abuse and 
the oppression of individuals as their wisdom may invent for the pur¬ 
pose, they alone are the judges in all cases contradistinguished from 
the extreme ones just mentioned. When measures of so much incon¬ 
venience shall be resorted to, it is not left, and ought not to be left, to 
the discretion of a military officer. For, if the general may judge when 
it is necessary, and put it in practice, so may the next officer, in com¬ 
mand at another post, and chose of still inferior grade in other parts of 
the country where stationed, until, at every military post, this despotic 
measure shall be resorted to, without any rule to restrain excesses, or 
to prevent oppression and disproportioued exactious. And cau any 
state of despotism be conceived more injurious to the rights of the 
citizen? Can he be free who is subjected to means so arbitrary?” 1 6, 
99. Barrow v. Page. 1818. 

Impressment of Property, by Military Commander, Questionable 
Without First Showing Danger, Etc. — In this Case it was held by MIL¬ 
LIGAN, J.: “The authority of a military commander to take or trespass 
upon private property without first showing by proof some immediate 
pending danger, or immediate urgent necessity for the public service, 
is questionable. And so of their authority to dispose of such property 
when taken or impressed for the benefit of third persons, not connected 
with the army. Courts can not excuse their trespasses.” 45, 95. Mer¬ 
ritt v. Mayor etc. of Nashville. 1867. 


See 46, 594. 

15 



226 


TENNESSEE CONSTITUTIONAL LAW. 


Impressment of Property for Army in Field —This Right in the 
State Depends upon the Police Power, Present Emergency, Necessity, 
Etc.—A ndrews, J.: “ The right of the State to impress and take pri¬ 

vate property for the use of an army in the field, and upon the actual 
theater of military operations, depends upon the police power of the 
nation, and arises from its obligation to protect the national existence, 
and the lives and property of its citizens. Like the right to destroy a 
house in order to arrest a conflagration, it depends upon the present 
emergency and the existence of a necessity which will not wait for due 
process of law. The clause prohibiting the taking of private property 
without compensation is not intended as a limitation of the exercise ot 
those police powers which are necessary to the tranquility of every 
well ordered community, nor of that general power over private prop¬ 
erty which is necessary for the orderly existence of all governments.” 
Sedg. Const. Law, 505. 

“ Undoubtedly the government ought, as far as possible, to protect 
the property of its citizens, and to make compensation to those whose 
property has been taken and appropriated to the public use. But the 
making of compensation in cases like the present is not a condition 
precedent to the right to take the property, or to the vesting of title 
thereto in the government. . . . This police power is one without 

which nations cannot exist. It must be exercised by and through the 
military agents of the government. Such agents must, in order to the 
discharge of their duties, exercise a discretion. And that discretion, 
unless shown to have been wantonly or in bad faith abused, can not be 
revised by the civil courts. It is true a military commander has no 
right to take private property without a necessity exist for his doing so. 
But the law, while active military operations are being carried on, makes 
him the judge of the necessity; and he cannot be held responsible, in 
a civil tribunal, for mere errors of judgment. . . . The necessity 
which justifies the taking in such a case is not that overpowering 
necessity which admits of no supposable alternative; but, if the vast 
interests at stake may probably be promoted by the appropriation of 
the property, it is the right and the duty of the officers, on whom rest 
the obligation, to omit no useful precaution to take and appropriate it.” 
46, 651, Taylor v. N., C. & St. L. B. B. Co. 1869. 


PERPETUITIES AND MONOPOLIES. 


227 


PERPETUITIES AND MONOPOLIES. 

Art. 1, Sec. 22. That perpetuities and monopolies are con¬ 
trary to the genius of a free State, and shall not be allowed. 

[ Same as Const. 1834, art. 1, sec. 22. Const. 1796, art. 11, sec. 23, had “ by law ” 
after the word “allowed.” ] 

Perpetuity—Various Common Law Definitions — Corporations — Rea¬ 
sons for this Provision — Charitable Uses — Devise of Property for Benefit 
of an Educational Institution, Valid. — JOHN MARSHALL, Sp. J.: “By the 
will the testator appoints his brothers, James Franklin and William 
Franklin, trustees for the charity and prescribes their duties. . . . 

The will proceeds in these words: ‘And after the death of my aforesaid 
brothers, it is my will and desire that the aforesaid trusts be continued 
and pass over forever in the heirs of my said brothers to pass the estate, 
and that the magistrates of the County court of said county of Sumner, 
and State of Tennessee, and their successors in office, be hereafter per¬ 
petual superintendents of the aforesaid seminary, to see that my inten¬ 
tions be fully carried into effect.’ . . . Art. 1, sec. 22, declares that 

perpetuities and monopolies are contrary to the genius of a free State, 
and shall not be allowed. This, of course, is the paramount of the law. 
But what is the perpetuity that is not to be allowed? The Constitution 
neither defines nor describes it, but assumes that what it is is known. 
We are left, then, to enquire into the common law for a proper under¬ 
standing of the term. And here we are met by various definitions, 
descriptions, and representations of a perpetuity aud its pernicious con¬ 
sequences, which, with a few exceptions, are calculated to mislead the 
enquirer. It is said that a perpetual charter of incorporation would be 
an unlawful perpetuity, because it lasts forever. 

“ But this would prove, if so, that every grant of land by the State, 
and every grant and transfer of property, would be perpetuities, because 
the titles pass forever from the grantors, and the yield of the sales is a 
perpetual fund, if it may be so called, in the hands of the grantors or 
those claiming under them, to be used or abused. These are not 
unlawful perpetuities. Again, it has been said that property held by 
corporations, with the right of perpetual succession in mortmain, is a 
perpetuity, as well as property held by corporations as trustees for 
charitable uses. It must be noted, however, that, when this is said, it 
is generally meant that when property is so held it is practically inalien¬ 
able, though not really so, if the corporation or trustees were inclined 
to sell, or if the proper tribunals were applied to to effect the sale. 

“It is true that the reason of the rule against perpetuities and the 
reason of the policy of the law, in this country, to destroy the entail- 
ment of estates and to prevent property from falling into dead or 
unserviceable hands, is the same, viz.: ‘to prevent property from being 


228 


TENNESSEE CONSTITUTIONAL LAW. 


withdrawn from commerce and rendered inalienable/ Property may be 
held by a man himself and his heirs forever, without making the 
slightest approach to a perpetuity. A perpetuity is defined (Lewis on 
the Laws of Perpetuities, 164) to be ‘a future limitation, whether 
executory or by way of remainder, and of real or personal property,, 
which is not to vest until after the expiration of, or will not necessarily 
vest within the period fixed and prescribed by law for the creation of, 
future interests, and which is not destructible by the persons for the 
time entitled to the property, subject to the future limitation, except 
with the concurrence of the individual interested under that limitation/ 
This definition is doubtless correct, and shows what is an unlawful per¬ 
petuity. It is manifest that no settlement of property, not made 
inalienable by the terms of the limitation, is a perpetuity, however 
likely it may be that it will never be abused. 

“ It is of the essence of a perpetuity that the property is incapable, 
beyond the period prescribed by law, of being sold freed from all limi¬ 
tations and trusts, by the use of all the means known to the law for 
affecting sales. If the charity created by Isaac Franklin shall be estab¬ 
lished, will the property given by him be in this condition? There are 
no expressions in the will that render the property inalienable. See 8 
Term. Rep., 61. And unless the trust itself implies that the property 
should be inalienable, it is alienable. It is conceded that an improvi¬ 
dent or prejudicial alienation by the trustees would be a breach of 
trust, for which the trustees would be held responsible, and in some 
instances the purchaser would be made trustee in invitum. The trus¬ 
tees of a charity may sell the property in the proper and bona fide 
execution of the trust, and the court of chancery may decree the sale. 
Attorney General v. Warren, 2 Swanst.,291; Griffin v. Graham, 1 Hawks, 
96; 7 Paige, 82, 83; Hill on Tr., 463, and authorities cited; Shelford on 
Mortmain, 677 et seq., and authorities cited. At common law, charitable 
uses are exempted from the rules against perpetuities. Lewis on Per¬ 
petuities, 663 et seq.-, Attorney General v. Hungerford, 2 Cl. & Fin., 357, 
374, cited in 2 Kent’s Com., 288, note; Griffin v. Graham, 1 Hawks, 120. 
This point again came before the Supreme court of North Carolina in 
1842, in the case of The State v. Girard, 2 Ired. Eq., 210. Judge Gaston, 
delivering the opinion of the court, says: ‘The objection that the 
declared trust would establish a perpetuity, and is therefore forbidden 
by the Constitution of North Carolina, is untenable—the perpetuities 
thereby contemplated are estates settled for private uses, so as to be 
inalienable. This is a public charity.’ The devise in that case was to 
the poor of Beaufort county, upon the condition that the lands should 
never be sold, but leased, not exceeding seven years, etc. The court is, 
therefore, of opinion that the devises and bequests of the testator to 
his brothers are valid.” 34,348. Franklin et al.v. Armfieldet al. 1854. 


PERPETUITIES AND MONOPOLIES. 


229 


Will Directing that Lands be Never Sold, Void.— The will of the 
testator declared: “I devise and direct that my land be never sold; 
but that the said association appoint and empower some discreet mem¬ 
ber of their own body, who shall be authorized to rent and receive 
rents, and apply the same for the above purposes, as directed, forever.” 
Milligan, J., held: “the devise created a perpetuity, and a court of 
chancery will not execute it.” 42, 77. White v. Hale. 1865. 

Devise to the Poor, and for Other Purposes. — Where a will devised 
a fund, and added: “My object being to make my estate a perpetual 
annual fund for the poor of Clarksville, and for the purpose of keeping 
up my graveyard and flower garden,” Turney, J., held: “It created a 
perpetuity as to the latter, and to that extent void.” 59, 635. Horn- 
berger v. Hornberger. 1874. 

Perpetuity — Monopoly — Exclusive Privilege Not Necessarily a 
Monopoly — Water Companies. — NICHOLSON, J.: “The charter of the 
Memphis Water Company limits the duration of the corporation to 
ninety-nine years, with exclusive privilege for thirty years. It does not, 
therefore, create a perpetuity. Does it create a monopoly by securing 
to the company the exclusive privilege of supplying the city with water 
by means of waterworks? We know of no better definition of a 
monopoly than that given by Lord Coke, and adopted by the Supreme 
court in the case of Charles River Bridge v. Warren Bridge, 11 Peters, 
707: ‘A monopoly is an exclusive right granted to a few of something 
which was before of common right — so that it is not a case of monopoly 
if the subject had not the common right or liberty before to do the act, 
or possess or enjoy the privilege or franchise granted as a common 
right/ The question then is narrowed down to the inquiry, did the 
individuals composing the Memphis Water Company have the right 
before their incorporation, in common with all others, to erect water¬ 
works in Memphis, to take up pavements, occupy the streets, and do 
such things as were necessary and proper in completing their water¬ 
works? It is clear that none had the right to do these things except 
the city of Memphis, by virtue of its corporate powers; and this right, 
on the part of the city, was exclusive until it was taken away by the 
legislature and transferred to the Memphis Water Company. It is no 
more a monopoly when conferred on the water company than when it 
belonged to the city of Memphis. It was an exclusive privilege when 
exercised by the city, but it was not a monopoly. It is an exclusive 
privilege in the Memphis Water Company, but not a monopoly. 4 Blachs., 
359; 31 Maryl. R., 346.” 52, 529. 1 City of Memphis v. Memphis Water 
Co. 1871. 


1 See same case, art. 1, sec. 20, p 185; art. 2, sec. 17; art. 11, sec. 8. 



230 


TENNESSEE CONSTITUTIONAL LAW. 


Art. 1 , Sec. 23. That the citizens have a right, in a peace¬ 
able manner, to assemble together for their common good, to 
instruct their representatives, and to apply to those invested with 
the powers of government for redress of grievances, or other 
proper purposes, by address or remonstrance. [Same as Const. 1834, 
art. 1, sec. 23; Const. 1796, art. 11, sec. 22.] 


Art. 1, Sec. 24. That the sure and certain defense of a free 
people is a well regulated militia; and, as standing armies in 
time of peace are dangerous to freedom, they ought to be 
avoided as far as the circumstances and safety of the commu¬ 
nity will admit; and that in all cases the military shall be kept 
in strict subordination to the civil authority. [Same as Const. 1834, 
art. 1, sec. 24; Const. 1796, art 11, sec. 24.] 

Art. 1 , Sec. 25. That no citizen of this State, except such 
as are employed in the army of the United States or militia in 
actual service, shall be subjected to punishment under the mar¬ 
tial or military law. (That martial law, in the sense of the unre¬ 
stricted power of military officers or others to dispose of the 
persons, liberties, or property of the citizen, is inconsistent with 
the principle of free government, and is not confided to any 
department of the government of this State.) [Const. 1796, art. 11, 
sec. 25, did not have the words “ or military ” between the words “ martial ” 
and “ law,” but Const. 1834, art. 1, sec. 25, did. The clause in parenthesis was 
in neither of these two Constitutions. In Const. 1796 the word “corporal” 
appeals before the word punishment. With these exceptions both same as 
above.] 


KEEPING AND BEARING ARMS. 


Origin and History of this Provision — 

“ Bear Arms”—“Common Defense ” 
Private Broils—Legislative Power- 
Act Prohibiting Wearing of Bowie 

Knife. 230 

Second Clause—Why Added by Convention 
of 1870—Purchase and Use—When 
Pistols May be Carried—Dirks, Stil¬ 
ettos, etc.—Regulation of Use.234 


“ Keep and Bear Arms ” —“ Carry”—Mean¬ 
ing of—Intent to go Armed—Act of 


Carrying Not Always Criminal. 238 

* 

Army Pistol—Why Constitution of 1834 was 

Amended. 238 

Pistols—Minors—Doctrines Announced in 

Foregoing Cases Approved. 239 


Art. 1 , Sec. 26. That the citizens of this State have a right 
to keep and to bear arms for their common defense; (but the 
legislature shall have power by law, to regulate the wearing of 
arms with a view to prevent crime. 1 ) [Const. 1796, art. 11, sec. 26 
read that “the freemen,” (and Const. 1834, art. 1, sec. 26 read that “ the free 
white men”) “of this State have a right to keep and to bear arms for their 
common defense.” The clause in parenthesis was in neither of these instru¬ 
ments. For reasons why it was added, see following opinions.] 


Origin and History of This Provision — Old English Law Meaning of 
the Words “Bear Arms” and “Common Defense”—Right to Carry Arms 
Used in Private Broils Not Secured by this Section — Legislature May 
Prohibit their Use — Kentucky Constitution—Act Prohibiting the Wear¬ 
ing of a Bowie Knife, Valid.—G reen, J. : “The plaintiff in error was 
convicted in the Giles Circuit court for wearing a bowie knife concealed 
under his clothes, under the 2 Act of 1837-38, ch. 137, sec. 2. . . . 

It is now insisted that the above act of the legislature is unconstitu- 


1 See 43, 214, and 84, 515. 


2 Code 1858, 4746; T. & S., 4746 ; M. & V., 5522. 









KEEPING AND BEARING ARMS. 


231 


tiooal. ... In the . . . Declaration of Rights, sec. 26, it is 
declared ‘that the free white men of this State have a right to keep 
and bear arms for their common defense.’ This declaration, it is insisted, 
gives to every man the right to arm himself in any manner he may 
choose, however unusual or dangerous the weapons he may employ, 
and, thus armed, to appear wherever he may think proper without 
molestation or hindrance, and that any law regulating his social con¬ 
duct, by restraining the use of any weapon or regulating the manner 
in which it shall be carried, is beyond the legislative competency to 
enact, and is void. In order to have a just and precise idea of the 
meaning of the clause of the Constitution under consideration, it will 
be useful to look at the state of things in the history of our ancestors, 
aud thus comprehend the reason of its introduction into our Constitution. 

“By the Act of 22 and 23 Car. II, ch. 25, sec. 3, it is provided that 
no person who has not lands of the yearly value of £100, other than 
the son and heir apparent of an esquire, or other person of higher 
degree, etc., shall be allowed to keep a gun, etc. By this act persons 
of a certain condition in life were allowed to keep arms, while a large 
proportion of the people were entirely disarmed. But King James II, 
by his own arbitrary power and contrary to law, disarmed the Pro¬ 
testant population, and quartered his Catholic soldiers among the people. 
This, together with other abuses, produced the revolution by which he 
was compelled to abdicate the throne of England. William and Mary 
succeeded him, and in the first year of their reign Parliament passed an 
act recapitulating the abuses which existed during the former reign, 
and declared the existence of certain rights which they insisted upon 
as their undoubted privileges. Among these abuses they say, in sec. 5, 
that he had kept a ‘standing army within the kingdom in time of peace 
without the consent of Parliament, and quartered soldiers contrary to 
law.’ Sec. 6. ‘By causing several good subjects, being Protestauts, to 
be disarmed, at the same time when Papists were both armed and 
employed contrary to law.’ In the Declaration of Rights that follows, 
sec. 7 declares that ‘the subjects which are Protestant may have arms 
for their defense suitable to their condition and as allowed by law.’ 
This declaration, although it asserts the right of the Protestants to have 
arms, does not extend the privilege beyond the terms provided in the 
act of Charles II, before referred to. ‘They may have arms,’ says the 
Parliament, ‘ suitable to their condition aud as allowed by law.’ The 
law, we have seen, only allowed persons of a certain rank to have arms, 
and consequently this declaration of right had reference to such only. 
It was in reference to these facts, and to this state of ihe English law, 
that the second section of the amendments to the Constitution of the 
United States was incorporated into that instrument. It declares that 
‘a well regulated militia being necessary to the security of a free state, 


232 


TENNESSEE CONSTITUTIONAL LAW. 


the right of the people to keep and bear arms shall not be infringed/ 
In the same view the section under consideration of our own Bill of 
Eights was adopted. 

“The evil that was produced by disarming the people in the time of 
James II, was that the king, by means of a standing army quartered 
among the people, was able to overawe them, and compel them to sub¬ 
mit to the most arbitrary, cruel and illegal measures. Whereas, if the 
people had retained their arms they would have been able, by a just 
and proper resistance to those oppressive measures, either to have 
caused the king to respect their rights or surrender (as he was event¬ 
ually compelled to do) the government into other hands. No private 
defense was contemplated, or would have availed anything. If the 
subjects had been armed they could have resisted the payment of exces¬ 
sive lines, or the infliction of illegal and cruel punishments. When, 
therefore, Parliament says that ‘ subjects which are Protestants may 
have arms for their defense, suitable to their condition, as allowed by 
law/ it does not mean for private defense, but, being armed, they 
may as a body rise up to defend their just rights and compel their 
rulers to respect the laws. This declaration of right is made in refer¬ 
ence to the fact before complained of, that the people had been dis¬ 
armed, and soldiers had been quartered among them contrary to law. 
The complaint was against the government. The grievances to which 
they were thus forced to submit were for the most part of a public 
character, and could have been redressed only by the people rising up 
for their common defense to vindicate their rights. 

“The section under consideration, in our Bill of Rights, was adopted 
in reference to these historical facts, and in this point of view its lan¬ 
guage is most appropriate and expressive. Its words are: ‘the free 
white men of this State have a right to keep and bear arms for their 
common defense/ It, to be sure, asserts the right much more broadly 
than the statute of 1 William and Mary. For the right there asserted is 
subject to the disabilities contained in the Act of Charles II. There, 
lords and esquires, and their sons, and the persons whose yearly income 
from land amounted to £100, were of suitable condition to keep arms. 
But, with us, every free white man is of suitable condition, and there¬ 
fore every free white man may keep and bear arms. But to keep and 
bear arms for what? If the history of the subject had left in doubt tne 
object for which the right is secured, the words that are employed must 
completely remove that doubt. It is declared that they may keep and 
bear arms for their common defense. The word ‘ common / here used, 
means, according to Webster: 1. Belonging equally to more than one, 
or to many indefinitely; 2. Belonging to the public; 3. General; 4. 
Universal; 5. Public. The object, then, for which the right of keeping 
and bearing arms is secured is the defense of the public. The free 


KEEPING AND BEARING ARMS. 


233 


white men may keep arms to protect the public liberty, to keep in awe 
those who are in power, and to maintain the supremacy of the laws and 
the Constitution. The words ‘bear arms/ too, have reference to their 
military use, and were not employed to mean wearing them about the 
person as part of the dress. As the object for which the right to keep 
and bear arms is secured is of general and public nature, to be exercised 
by the people in a body, for their common defense, so the arms , the right 
to keep which is secured, are such as are usually employed in civilized 
warfare, and that constitute the ordinary military equipment. If the 
•citizens have these arms in their hands, they are prepared in the best 
possible manner to repel any encroachments upon their rights by those 
in authority. They need not, for such a purpose, the use of those 
weapons which are usually employed in private broils, and which are 
efficient only in the hands of the robber and the assassin. These 
weapons would be useless in war. They could not be employed advan¬ 
tageously in the common defense of the citizens. The right to keep 
and bear them is not, therefore, secured by the Constitution. . . . 
The legislature, therefore, have a right to prohibit the wearing or 
keeping weapons dangerous to the peace and safety of the citizens, and 
which are not usual in civilized warfare, or would not contribute to the 
common defense. The right to keep and bear arms for the common 
defense is a great political right. It respects the citizens, on the one 
hand, and the rulers on the other. And although this right must be 
inviolably preserved, yet it does not follow that the legislature is pro¬ 
hibited altogether from passing laws regulating the manner in which 
these arms may be employed. 

“To hold that the legislature could pass no law upon this subject by 
which to preserve the public peace, and protect our citizens from the 
terror which a wanton and unusual exhibition of arms might produce, 
nr their lives from being endangered by desperadoes with concealed 
arms, would be to pervert a great political right to the worst of pur¬ 
poses, and to make it a social evil of infinitely greater extent to society 
than would result from abandoning the right itself. . . . The con¬ 

vention, in securing the public political right in question, did not intend 
to take away from the legislature all power of regulating the social 
relations of the citizens upon this subject. It is true, it is somewhat 
difficult to draw the precise line where legislation must cease and where 
the political right begins, but it is not difficult to state a case where the 
right of legislation would exist. The citizens have the unqualified right 
to keep the weapon, it being of the character before described as being 
intended by this provision. But the right to bear arms is not of that 
unqualified character. The citizens may bear them for the common 
defense ; but it does not follow that they may be borne by an individual, 
merely to terrify the people or for purposes of private assassination. 


234 


TENNESSEE CONSTITUTIONAL LAW. 


And, as the manner in which they are worn and the circumstances under 
which they are carried indicate to every man the purpose of the wearer, 
the legislature may prohibit such manner of wearing as would never be 
resorted to by persons engaged in the common defense. . . . 

“The phrase, ‘ bear arms ,’ is used in the Kentucky Constitution as- 
well as in our own, and implies, as has already been suggested, their 
military use. The twenty-eighth section of our Bill of Rights provides- 
‘that no citizen of this State shall be compelled to bear arms , provided 
he will pay an equivalent, to be ascertained by law/ Here we know 
that the phrase has a military sense, and no other; and we must infer 
that it is used in the same sense in the twenty-sixth section, which 
secures to the citizen the right to bear arms. A man in the pursuit of 
deer, elk, and buffaloes might carry his rifle every day for forty years, 
and yet it would never be said of him that he had borne arms ; much 
less could it be said that a private citizen bears arms because he has a. 
dirk or pistol concealed under his clothes, or a spear in a cane. . . . 

In the case of Simpson v. The State, 5 Yerg., 356, Judge Whyte, in 
delivering the opinion of the court, makes use of the general expression 
that, ‘by this clause in the Constitution, an express power is given and 
secured to all the free citizens in the State to keep and bear arms for 
their defense, without any qualification whatever as to their kind and 
nature.’ But in that case no question as to the meaning of this pro¬ 
vision in the Constitution arose, or was decided by the court, and the 
expression is only an incidental remark of the judge who delivered the 
opinion, and, therefore, is entitled to no weight. Upon either of the 
grounds assumed in this opinion the legislature had the right to pass- 
the law under which the plaintiff in error was convicted.” 21, 156. 
Aymette v. The State. 1840. 

Reasons Why the Second Clause of This Section Was Added by the 
Convention of 1870—Right to Keep and Bear Arms Involves Right to 
Purchase and Use — Carrying Dirks, Stilettos, etc., Prohibited — Circum¬ 
stances Under Which Pistol May be Carried — Question of Proof — 
Regulation of Use — United States Constitution. — FREEMAN, J.: “What 
rights are guaranteed by the first clause of this section? . . . Wo 

may well look at any other clause of the same Constitution, or of the 
Constitution of the United States, that will serve to throw any light on 
the meaning of this clause. The first clause of sec. 24 says, ‘that the 
sure defense of a free people is a well regulated militia.’ We then turn 
to art. 2 of Amendments to the Constitution of the United States, where 
we find the same principle laid down in this language: ‘A well regulated 
militia being necessary to the security of a free State, the right of the 
people to keep and bear arms shall not be abridged.’ We find that. 


^Bliss v. Commonwealth (Ky.) 2 Littell, 90. 



KEEPING AND BEARING ARMS. 


235 


necessarily, the same rights, and for similar reasons, were being pro¬ 
vided for and protected in both the Federal and State Constitutions; in 
the one, as we have shown, against infringement by the Federal legisla¬ 
ture, and in the other, by the legislature of the State. What was the 
object held to be so desirable as to require that its attainment should 
be guaranteed by being inserted in the fundamental law of the land? It 
was the efficiency of the people as soldiers, when called into actual 
service for the security of the State, as one end; and in order to this, 
they were to be allowed to keep arms. What, then, is involved in this 
right of keeping arms? It necessarily involves the right to purchase 
and use them in such a way as is usual, or to keep them for the ordi¬ 
nary purposes to which they are adapted; and, as they are to be kept, 
evidently with a view that the citizens making up the yeomanry of the 
land—the body of the militia—shall become familiar with their use in 
times of peace, that they may the more efficiently use them in times of 
war, then the right to keep arms for this purpose involves the right to 
practice their use, in order to attain to this efficiency. The right and 
use are guaranteed to the citizen, to be exercised and enjoyed in time 
of peace, in subordination to the general ends of civil society; but, as a 
right, to be maintained in all its fullness. The right to keep arms, 
necessarily involves the right to purchase them, to keep them in a state 
of efficiency for use, and to purchase and provide ammunition suitable 
for such arms, and to keep them in repair. 

“And clearly for this purpose, a man would have the right to carry 
them to and from his home, and no one could claim that the legislature 
had the right to punish him for it, without violating this clause of the 
Constitution. But farther than this, it must be held, the right to keep 
arms involves necessarily the right to use such arms for all the ordinary 
purposes, and in all the ordinary modes usual in the country, and to 
which arms are adapted, limited by the duties of a good citizen in times 
of peace; that in such use, he shall not use them for violation of the 
rights of others, or the paramount rights of the community of which he 
makes a part. Again, in order to arrive at what is meant by this clause 
of the State Constitution, we must look at the nature of the thing itself, 
the right to keep which is guaranteed. It is ‘arms;’ that is, such 
weapons as are properly designated as such, as the term is understood 
in the popular language of the country, and such as are adapted to the 
ends indicated above; that is, the efficiency of the citizen as a soldier, 
wheu called on to make good ‘the defense of a free people;’ aud these 
arms he may use as a citizen, iu all the usual modes to which they are 
adapted, and common to the country. What, then, is he protected iu 
the right to keep aud thus use? Not every thing that may be useful for 
offense or defense; but what may properly be included or understood 
under the title of arms, taken in connection with the fact that the citizen 


236 


TENNESSEE CONSTITUTIONAL LAW. 


is to keep them, as a citizen. Such, then, as are found to make up the 
usual arms of the citizen of the country, and the use of which will 
properly train and render him efficient in defense of his own liberties, 
as well as of the State. Under this head, with a knowledge of the 
habits of our people, and of the arms in the use of which a soldier 
should be trained, we would hold, that the ride of all descriptions, the 
shot-gun, the musket, and repeater, are such arms; and that under the 
Constitution the right to keep such arms, can not be infringed or for¬ 
bidden by the legislature. Their use, however, to be subordinated to 
such regulations and limitations as are or may be authorized by the law 
of the land, passed to subserve the general good, so as not to infringe 
the right secured and the necessary incidents to the exercise of such 
right. 

“What limitations, then, may the legislature impose on the use of 
such arms, under the second clause? ... In the case Aymette v. 
The State, Judge Greene said, that ‘ the convention, in securing the 
public political right in question, did not/ etc. 1 . . . This was 

said in reference to the clause of the Constitution of 1834. The con¬ 
vention of 1870, knowing that there had been differences of opinion 
on this question, have conferred on the legislature in this added clause, 
the right to regulate the wearing of arms, with a view to prevent 
crime. . . . 

“The principle on which all right to regulate the use in public of 
these articles of property is, that no man can so use his own as to 
violate the rights of others, or of the community of which he is a mem¬ 
ber. So may we say, with reference to such arms, as we have held, he 
may keep and use in the ordinary mode known to the country, no law 
can punish him for so doing while he uses such arms at home or on his 
own premises; he may do with his own as he will while doing no wrong 
to others. Yet, when he carries his property abroad, goes among the 
people in public assemblages where others are to be affected by his 
conduct, then he brings himself within the pale of public regulation, 
and must submit to such restrictions on the mode of using or carrying 
his property as the people, through their legislature, shall see fit to 
impose for the general good. ... We hold, then, that the 2 Act of 
the legislature in question, so far as it prohibits the citizen ‘either pub¬ 
licly or privately to carry a dirk, sword cane, Spanish stiletto, belt or 
pocket pistol/ is constitutional. As to the pistol designated as a 
revolver, we hold this may or may not be such a weapon as is adapted 
to the usual equipment of the soldier, or the use of which may render 
him more efficient as such, and therefore hold this to be a matter to be 
settled by evidence as to what character of weapon is included in the 
designation ‘revolver/ We know there is a pistol of that name which 


1 See p. 233. 


2 Acts 1871, ch. 90; M. & V., 5533. 



KEEPING AND BEARING ARMS. 


237 


is Dot adapted to the equipment of the soldier, yet we also know that 
the pistol known as the repeater is a soldier’s weapon, skill in the 
use of which will add to the efficiency of the soldier. If such is the 
character of the weapon here designated, then the prohibition of the 
statute is too broad to be allowed to stand consistently with the views 
herein expressed. It will be seen that the statute forbids by its terms 
the carrying of the weapon publicly or privately, without regard to 
time or place or circumstances, and in effect is an absolute prohibition 
against keeping such a weapon, and not a regulation of the use of it. 
Under this statute, if a man should carry such a weapon about his own 
home, or on his own premises, or should take it from his home to 
a gunsmith to be repaired or return with it, should take it from his room 
into the street to shoot a rabid dog that threatened his child, he would be 
subjected to the severe penalties of line and imprisonment prescribed in 
the statute. In a word, as we have said, the statute amounts to a pro¬ 
hibition to keep and use such weapou for any and all purposes. It, 
therefore, in this respect, violates the constitutional right to keep arms 
and the incidental right to use them in the ordinary mode of using such 
arms, and is inoperative. If the legislature think proper, they may by 
a proper law regulate the carrying of this weapon, publicly or abroad, 
in such a manner as may be deemed most conducive to the public peace 
and the protection and safety of the community from lawless violence. 
We only hold that, as to this weapon, the prohibition is too broad to be 
sustained. . . . 

“This clause . . . could scarcely be construed to authorize the 

legislature to prohibit such wearing, where it was clearly shown they 
were bona fide to ward off or meet imminent and threatened danger to 
life or limb, or great bodily harm, circumstances essential to make out 
a case of self-defense. It might well be maintained they were not 
worn under such circumstances in order to crime, or that such purpose 
existed, or that the wearing under the circumstances indicated of a 
weapon that might lawfully be kept, had any direct tendency to produce 
crime. On the contrary, the purpose would be to prevent the commis¬ 
sion of crime on the part of another.” . . . 

Held also that “the Constitution of the United States, Art. 2 of 
Amendments, declaring the right of the citizen to bear arms, is a restric¬ 
tion alone upon the United States, and has no application to the State 
governments.” 50,177. Andrews v. The State et al. 1871. Nicholson, 
J., and Deaderick, J., concurred in the general views of the opinion. 
Sneed, J., dissented from so much of the opinion as questioned the 
right of the legislature to prohibit the wearing of arms of any descrip¬ 
tion, or sought to limit the operation of the Act of 1870. Nelson, J., 
delivered a dissenting opinion, in which Turney, J., concurred. 


238 


TENNESSEE CONSTITUTIONAL LAW. 


“Keep and Bear Arms”—“Carry,” Meaning of—Intent to Go 
Armed—Act of Carrying Not Always Criminal. — NICHOLSON, J.: “The 
question here is, What is the meaning intended by the legislature to be 
conveyed by the word ‘ carry V It will be observed that the prohibitory 
clause of the Constitution uses the words, ‘keep and bear arms/ etc. 
The legislature has avoided using this language, but has used a word, 
which, as connected with weapons, conveys the idea of ‘wearing 
weapons/ or ‘going armed.’ When we use the expression, ‘he carries 
arms/ we mean ‘he goes armed/ or ‘he wears arms. 7 This is manifestly 
the sense in which the word was used by the legislature, and we know 
of no other single word which could more clearly convey the meaning 
intended to be conveyed than the word ‘carry. 7 In this sense, Page was 
not only literally carrying a forbidden weapon, but he was ‘carrying 7 it 
— that is, ‘he was going armed/ contrary to the true meaning of the 
statute. It will be observed, that the interpretation which we give to 
the word ‘carry 7 meets and carries out the manifest purposes of the 
legislature, which was, not only to make criminal the habitual carrying 
or wearing of dirks, sword canes, Spanish stilettos, belt or pocket pis¬ 
tols, or revolvers, but, also, to make criminal a single act of wearing or 
carrying one of these weapons, when it is so worn or carried with the 
intent of thus going armed. But we are far from understanding the 
legislature as intending to make every act of carrying one of these 
weapons criminal. Under the Constitution, every man has a right to 
own and keep these weapons, nor is this right interfered with by the 
prohibition against ‘carrying 7 them, in the sense in which the legislature 
uses the word. To constitute the carrying criminal, the intent with 
which it is carried must be that of going armed, or being armed, or 
wearing it for the purpose of being armed. . . . It is sufficient 

here to say, that, without the intent or purpose of being or going armed, 
the offense described in this statute can not be committed. 77 50, 198. 
Page v. The State. 1871. 

Constitution of 1834 — Why Amended by that of 1870 — Carrying 
of Army Pistol. — Nicholson, J.: “The question before us is, Whether 
the *Act of 1871, prohibiting the carrying of an army pistol about 
the person, publicly or privately, is authorized by this clause? 

. . . As already indicated, we have no doubt on this question, 

and hold the act to be clearly constitutional. The Constitution of 
1834 contained only the provision securing to the citizen ‘the right to 
keep or bear arms for the common defense. 7 The additional clause in 
the Constitution of 1870 was adopted to remove all doubt as to the 
power of the legislature to regulate the use of the arms which the citi¬ 
zens had a right to keep. It was not intended that the keeping or using 
of such arms should be prohibited, but that the use thereof by wearing 


M. & V., 5529. 



KEEPING AND BEARING ARMS. 


239 


or carrying about the person might be so regulated by law as to prevent 
crime. It was crime resulting from the habit of wearing arms, or of 
going armed, which the convention sought to prevent, by expressly 
conferring this power on the legislature. The legislature has deemed it 
a proper prevention of crime to regulate the use of this arm by prohib¬ 
iting the wearing of it or carrying it about the person, privately or pub¬ 
licly, unless it be carried openly in the hands, or unless it be worn or 
carried by an officer or policeman engaged in his duties, or by a traveler 
on a journey. This was a legitimate exercise of the power to regulate 
the wearing of the weapon, and is authorized by the Constitution, and 
does not interfere with the right of keeping the arm, or of bearing it 
for the common defense.” 66, 62. State v. Wilburn. 1872. 

Doctrines Announced in Foregoing Opinions Approved — Keep and 
Bear Arms — Pistols — Minors. — DEADERICK, J.: “The cases of Aymette 
v. The State and Page v. The State, . . . sufficiently indicate the 
difference between the right and the wrong construction of the ‘right 
to keep and bear arms/ etc., and we do not deem it necessary to do 
more than say that we regard the *act to prevent the sale, gift or loan 
of a pistol or other like dangerous weapon to a minor, not only consti¬ 
tutional as tending to prevent crime, but wise and salutary in all its 
provisions.” 69, 716. The State v. Callicutt. 1878. 

Art. 1, Sec. 27. That no soldier shall, in time of peace, be 
quartered in any house without the consent of the owner, nor in 
time of war, but in a manner prescribed by law. [Same as Const. 

1834, art. 1, sec. 27; Const. 1796, art. 11, sec. 27.] 


Art. 1, Sec. 28. That no citizen of this State shall be com¬ 
pelled to bear arms, provided he will pay an equivalent, to be 
ascertained by law . 2 [Same as Const. 1834, art. 1, sec. 28; Const. 1796, 
art. 11, sec. 28.] 


Art. 1, Sec. 29. That an equal participation in the free 
navigation of the Mississippi is one of the inherent rights of the 
citizens of this State; it can not, therefore, be conceded to any 
prince, potentate, power, person or persons whatever. [Same as 
Const. 1834, art. 1, see. 29; Const. 1796, art. 11, sec. 29.] 


Art. 1, Sec. 30. That no hereditary emoluments, privileges, 
or honors shall ever be granted or conferred in this State. 3 [Same 
as Const. 1834, art. 1, sec. 30; Const. 1796, art. 11, sec. 30.] 


1 T. & S.. 4864 ; M. <k V., 5678. 

3 See Aymette v. The State, art. 1, sec. 26, p. 230. 


3 See 89, 53>. 



240 


TENNESSEE CONSTITUTIONAL LAW. 


LIMITS AND BOUNDARIES. 


Art. 1, Sec. 31. That the limits and boundaries of this State 
being ascertained, it is declared they are as hereafter men¬ 
tioned—that is to say: Beginning on the extreme height of the 
Stone mountain, at the place where the line of Virginia inter¬ 
sects it, in latitude thirty-six degrees and thirty minutes north; 
running thence along the extreme height of the said mountain 
to the place where Watauga river breaks through it; thence 
a direct course to the top of the Yellow mountain, where Bright’s 
road crosses the same; thence along the ridge of said mountain, 
between the waters of Doe river and the waters of Rock 
creek, to the place where the road crosses the Iron mountain; 
from thence along the extreme height of said mountain to the 
place where Nolichucky river runs through the same; thence to 
the top of the Bald mountain; thence along the extreme height 
of said mountain to the Painted Rock on French Broad 
river; thence along the highest ridge of said mountain to the 
place where it is called the Great Iron or Smoky mountain; 
thence along the extreme height of said mountain to the place 
where it is called Unicoi or Unaka mountain, between the 
Indian towns of Cowee and Oldchota; thence along the main 
ridge of the said mountain to the southern boundary of this 
State, as described in the Act of Cession of North Carolina to the 
United States of America; and that all the territory, lands, and 
waters lying west of the said line as before mentioned, and con¬ 
tained within the chartered limits of the State of North Carolina 
are within the boundaries and limits of this State over which 
the people have the right of exercising sovereignty, and the 
right of soil, so far as is consistent with the Constitution of the 
United States, recognizing the Articles of Confederation, the Bill 
of Rights, and Constitution of North Carolina, the Cession Act of 
the said State, and the ordinance of Congress, for the govern¬ 
ment of the territory northwest of the Ohio; provided, nothing 
herein contained shall extend to affect the claim or claims of 
individuals to any part of the soil which is recognized to them 
by the aforesaid Cession Act; [Same as Const. 1796, art. n, sec. 31.] 
and, provided also, that the limits and jurisdiction of this State 
shall extend to any other land and territory now acquired, or 
that may hereafter be acquired, by contact or agreement with 
other States or otherwise, although such land and territory are 
not included within the boundaries hereinbefore designated. 1 
[Entire section same as Const. 1834, art. 1, sec. 31.] 

North Carolina Land Claims — Cession Act. — McKlNNEY, J.: “The 
validity of these North Carolina claims is emphatically recognized by 
the Constitution of Tennessee, art. 1, sec. 31. It is in substance 
declared, that the sovereignty and right of soil of Tennessee are sub¬ 
ject to the conditions and provisions of the Cession Act, and shall not 
‘ extend to affect the claim or claims of individuals to any part of the 
soil which is recognized to them by the aforesaid Cession Act.’ 

“The right to the land appropriated by these ‘claims/ as before 
remarked, is derived, not from Tennessee/but from North Carolina. 
The former was merely invested with the naked power of issuing a 
grant to the bona Me claimant. And even the power to issue the grant 


1 See 57 , 295, and 58 , 351; also 148 , U. S., 503. 



LIMITS AND BOUNDARIES. 


241 


is a delegated power, not emanating from her own independent sover¬ 
eignty, but from the sovereignty of North Carolina. 5 Hay., 113, 117. 
Independent of the exercise of any power or authority in Tennessee, 
the owner of the land appropriated under a North Carolina land war¬ 
rant, may be regarded as invested with an estate iu fee simple, merely 
by force of the Cession Act, and the Acts of Congress, and of the 
general assembly of Tennessee, passed in pursuance thereof. If these 
principles be correct, it follows that the legislature does not possess the 
power to annex a subsequent condition, by which the failure of the 
claimant to apply for a grant, within a limited period, shall work a for¬ 
feiture of his estate. 

“ Tennessee voluntarily took upon herself the positive, active obliga¬ 
tion to perfect the titles, by the issuance of grants upon all bona fide 
claims originating under the provisions of the Cession Act. This duty 
could have been easily discharged, consistently with her own obligations 
and the rights of the claimants, by causing the grants to be in fact 
issued, and, if thought proper, making the necessary expenses, incident 
to their issuance, a charge upon the lands of the respective owners. 
But clearly, the legislature, by merely providing for the issuance of a 
grant, on the application of the owner of the land within a limited time, 
could not, on the ground of his neglect to demand a grant within the 
time, destroy the right vested in him by his entry. This is a right which 
Tennessee did not give, and could not, in this manner, take away. . . . 
We do not deem it proper, at present, to discuss the question as to the 
power of the legislature to annex subsequent conditions and limitations 
in regard to the time within which the enterers of land, deriving their 
right from the exclusive sovereignty and right of soil in Tennessee, 
shall perfect their titles. The question, in this aspect, is not before us, 
and we intimate no opinion upon it.” 39, 481. Fogg et al. v. Williams 
et al. 1859. 


Art. 1, Sec. 32. That the erection of safe and comfortable 
prisons, the inspection of prisons, and the humane treatment of 
prisoners shall be provided for. 


The Constitution of 1796, art. 1, sec. 31, and that of 1834, art. 1, sec. 32, were as follows: “ The 
people residing south of the French Broad and Holston, between the rivers Tennessee and Big 
Pigeon, are entitled to the right of pre-emption and occupancy in that tract.” 

In Shields v. Walker, 2, 115 (1811), White, J., held: “Under the Constitution of 1<96. the 
right of pre-emption and occupancy given to certain people residing south of the French Broad 
and Holston rivers, belonged not to the earliest settler, but to the actual resident at the date of 
the adoption of the Constitution.” , , , ^ , _ _ _ ~. . 

Iu George v Gamble, 2, 171 (1811), White, J , held: “The fact that the Indian title had not 
been extinguished at the date of the Constitution of 1796, did not prevent the operation of the 
occupant and pre-emption right secured to residents on the land by that instrument. 

See also 4 , 102. 


16 



242 


TENNESSEE CONSTITUTIONAL LAW. 


SLAVERY AND SERVITUDE. 

Art. 1, Sec. 33. That slavery and involuntary servitude, 
except as a punishment for crime, whereof the parties shall 
have been duly convicted, are forever prohibited in this State. 1 2 
[ Amendment of 1865, art. 1, sec. 1, substantially same as above.] 

Art. 1, Sec. 34. The General Assembly shall make no law 
recognizing the right of property in man. [Amendment of 1865, 
art. 1, sec. 2, substantially same as above.] 

Emancipation Proclamation Void — Slavery Abolished.— NELSON, J., 
held: “The emancipation proclamation of A. Lincoln was an unconsti¬ 
tutional and void act. . . . Slavery was unquestionably abolished 

in Tennessee by the Constitution of 1870, if it was not effectually 
and properly done by the Constitution of 1865.” 2 50 , 653. Andrews 
v. Page. 1871. 


1 See 42 , 13, 184 and 553 ; 43 , 9, 123; 44 , 581; 45 , 203. 

2 This opinion contains a valuable and instructive review of the rights of slaves in Ten¬ 
nessee before the emancipation. 

The Constitution of 1834, art. 2, sec. 31, read : “ The General Assembly shall have no power 
to pass laws for the emancipation of slaves without the consent of their owner or owners.” 

The amendment of 1865, schedule, sec. 1, read: “Section thirty-one of the second article of 
the Constitution, which is as follows: ‘The General Assembly shall have no power to pass laws 
for the emancipation of slaves without the consent of their owner or owners,’ is hereby abro¬ 
gated.” See 22 , 496; 45 , 202 ; 78 , 663. 



DISTINCT DEPARTMENTS OF GOVERNMENT. 


243 


ARTICLE II. 

DISTRIBUTION OF POWERS. 

Distinct Departments of Government. 


Legislative Department. 

PAGE. 

Legislature Can Do All Things Not Pro¬ 
hibited by Constitution...'. 244 

Inherent Power of Legislature. 244 

Act Authorizing Guardian to Sell Lands to 

Pay Debts of Ancestors, Void.244 

Legislative Interpretation of Laws. 246 

Act Directing How Statute Shall be Con¬ 
strued, Void— Security of the Cit¬ 
izen Rests Upon this Division of 

Power.246, 249 

Statutes—How to be Construed with Refer¬ 
ence to the Constitution.249 

Legislature Can Not Discharge Criminal 

by Resolution. 246 

Discretion of Legislature in Making Laws— 

Speculation in Witness Fees. 248 

Legislature Could Not Direct Judgment of 
Supreme Court when Judges were 

Equally Divided. 250 

Legislative Policy—Limits of the Judiciary. 252 
Legislation Procured by Fraud and Brib¬ 
ery .252, 254 

Remedy is to Repeal —One Department 
Can Not Sit in Judgment on Con¬ 
duct of Another—Duty of Governor 

to Call Extra Session.254, 255 

Nuisance—Abatement of. Not a Legislative, 

but a Judicial Act. 196 

Legislature Has Power to Take Property for 
Public Use—Courts may Review and 
Annul Acts Showing Abuse of 

Legislative Power. 

Legislature Can Not Impose Privilege Tax 
on Lawyers. See Art. 2, Sec. 28, 
Lawyers' Tax Cases. 

Taxation —Delegation of this Power to 
Municipal Corporations. See Art. 

2, Sec. 28, Hope v. Deaderick. 

County Subscriptions to Railroads—Dele¬ 
gation of Legislative Power to Peo¬ 
ple. See Art. 2, Sec. 29, L. <Sc N. It. 

R. Co. v. Davidson County. 

Levy of Tax by School Districts, Void- 
Delegation of Legislative Power. 

See Art. 2, Sec. 29, Lipscomb v. Dean. 


Legislative Department. 

PAGE. 

Power of Legislature to Compromise Law¬ 
suits. See Art. 11, Sec. 8, Demoville 
v. Davidson County, and Art. 11, Sec. 

14, Governor v. McEwen. 


Executive Department. 


Governor, a Corporation Sole—Bonds Paya¬ 
ble to Him—The State an Ideality- 

Public Functionaries. 256 

Exercise of Judicial Power by Governor- 
Act Empowering Him to Annul 

Registration Certificates, Void.257 

Mandamus Against Governor—Courts Can 
Not Issue —Reasous —Doctrines in 

Other States. 258 

Mandamus Certificate of Election—Duties, 
Executive and Political—Province 
of Courts. 259 


Judicial Department. 


Act Authorizing Courts to Grant Charters 
to Corporations. Void—Delegation 
of Legislative Pow'er—Three De¬ 
partments, a System of Checks and 

Balances.260 

Transfer of Lawmaking Power to Judiciary. 263 
Duty of Supreme Court in Declaring Act 

Unconstitutional. 263 

Act Requiring Venue to be Changed on 
Affidavit of Unconditional Union 

Men, Void. 264 

Constitutions, State and Federal—Conflict. 264 


Acts Judicial and Legislative in Character- 
How Distinguished—Pending Suits 
—Acts Giving Remedies Not Before 


Possessed—Severance in Trial. 264 

Administrators and Executors—Evidence— 
Parties to Suits—Rights—Duty of 

Legislature and Courts to Same. 266 

Duty of Court in Construing Statute. 267 

Custody of Jury Pending Trial—Discretion 

of Judge. 267 


Article 2, Section 1. The powers of the government shall 
be divided into three distinct departments: the legislative, 
executive, and judicial. [Same as Const. 1834, art. 2, sec. 1. ] 

Art. 2, Sec. 2. No person or persons belonging to one of 
these departments shall exercise any of the powers properly 
belonging to either of the others, except in the cases herein 
directed or permitted. 1 [Same as Const. 1834, art. 2, sec. 2. J 


1 9 , 454 ; 92 , 432 . 





























244 


TENNESSEE CONSTITUTIONAL LAW. 


Legislative Department. 

Legislature Can Do All Things Not Prohibited. — HAYWOOD, J.: 
“ The question is, could the legislature of Tennessee create a banking 
corporation? To which the answer is, that the legislature of Tennessee, 
like the legislatures of all other sovereign States, can do all things not 
prohibited by the Constitution of this State or of the United States, 
and, amongst other things, may establish a banking corporation, with 
a capacity to sue and be sued, and, of course, to institute and maintain 
this action.” 7, 270. Bell v. Bank of Nashville. 1823. 

Inherent Power of the Legislature. — CRABB, J.: “A Constitution, or 
fundamental law, from its very nature, is brief in its provisions, and 
confined to the enunciation of first principles. It tells us that an act 
is to be done, or a result produced, but often pretends not to particu¬ 
larize the time or manner. The latter power is necessarily left to the 
legislative department, under the high responsibilities which impel and 
restrain it in all its operations. It is believed that the general assembly 
have an unquestionable right to supply the mode of executing a power, 
or a duty devolved by the Constitution in general terms on any citizen 
or body of citizens in the community; provided that mode do not come 
in collision with any of the injunctions of the Constitution, and is con¬ 
sistent with all its principles.” 8, 291. 1 The State v. Turk. 1821. 

Act Authorizing Guardian to Sell Lands to Pay Debts of Ancestor is 
an Exercise of Judicial Power by Legislature, and Void.— GREEN, J.: 
“ The Act of 1825, ch. 154, enacted upon the application of the guardians 
of the complainants, authorized said guardians to sell the tract of land 
in controversy for the purpose of raising a fund to pay the debts of com¬ 
plainants’ ancestor. In pursuance of its provisions they proceeded to 
sell the land, on May 18, 1826, to David and Thomas Steel, to whom a 
conveyance was made. The Steels sold to James Perry, who took pos¬ 
session of the premises and who has since sold to James W. Wheeler. 
The bill prays that the deed to the Steels may be delivered up to be 
canceled, that the possession of the land may be delivered to complain¬ 
ants. . . . It is contended that this Act of Assembly is unconstitu¬ 

tional. First, because it is an exercise of judicial authority, and second, 
because it deprives the complainants of their property without the 
judgment of their peers or the operation of the law of the land. It is 
clear that the legislature of this State can not rightfully exercise a judi¬ 
cial power. By the Constitution (at the time this act was passed) it is 
provided, in art. 6, sec. 1, ‘that the judicial power of the State shall be 
vested in such superior and inferior courts of law and equity as the 


1 See same case in note to art. 7, sec. 2. 



DISTINCT DEPARTMENTS OF GOVERNMENT. 


245 


legislature shall from time to time direct and establish. Here the whole 
of the judicial power of the State having been vested in the courts, the 
assumption of any such power by the legislature would encroach upon 
the jurisdiction of another co-ordinate department of the government, 
would transcend the powers entrusted to it, and would consequently be 
unconstitutional and the act would be void. The question then recurs, 
Is the act under consideration of a judicial character? It does not par¬ 
take of the character of a law, for it forms no rule of action of that 
permanent, uniform, and universal character which Blackstone in his 
Commentaries, vol. 1, p. 1, says constitute the fundamental principles of 
municipal law. What is it, then, but a judicial decree? It was enacted 
upon the avowed ground that the estate of John Jones, deceased, was 
indebted. What does it do, then, but adjudge the existence of the 
debts, and decree that the lands be sold for their payment? It is, to be 
sure, in form a law, but we are unable to see how it differs in substance 
from a judicial decree; and, if it is in substance a judicial decree, the 
form in which its makers have thought proper to clothe it can not alter 
its character. 

“The legislature can not sit in judgment, try causes and apply the 
rules of law to them, make decrees, and much less can they make 
decrees in the exercise of an arbitrary power, independent of, and in 
opposition to, the rules of the law. It is difficult to perceive how an 
act which determines that the property of a party is liable for a given 
debt, and that it be sold for the payment of that debt, is not a judicial 
act; and yet in substance that is the case before us. It is true, the sale 
is authorized for the payment of debts generally; but that can make no 
difference as to its judicial character. It is the same thing, in principle, 
whether there be ten creditors or only one. . . . The legislature is 

not sovereign; it is not the constituent of the courts, nor are they its 
agents; aud any assumption by the legislature of powers conferred by 
the Constitution upon the judiciary is as destitute of authority as it 
would be in the courts were they, iustead of adjudging what the law is, 
to undertake the exercise of legislative powers aud to prescribe what 
it shall be. 

“These observations are made in order to show that, as the sover¬ 
eignty does not rest in the legislature, the power to exercise a guardian¬ 
ship over the estate aud persons of iufauts does not exist in that body. 
It is the duty, certaiuly, of the government to protect and provide for 
those who are incapable of taking care of themselves; but it is the duty 
of the legislature to pass general laws whereby this may be done.” 
18, 69. 1 Jones' Heirs v. Perry et al. 1836. 


1 See same case, art. 1, sec. 8, p. 49. 



246 


TENNESSEE CONSTITUTIONAL LAW. 


Legislative Interpretation. — GREEN, J.: “It is not the province of 
the legislature to expound the meaning of previously-existing laws; 
they can say what shall be the law, but are not authorized to say what 
it is.” 21,304. Clark v. Williams. 1841. 

Upon This Division of Power Rests the Security of the Citizen—Act 
Directing How a Statute Shall he Construed, Void.— The Act of 1839, ch. 
142, sec. 1, p. 235, provided that the first and second sections of the 
Act of 1835, ch. 15, p. 72, “which require bonds to be executed by 
sheriffs and their securities for the proper collection and payment of 
the State and county revenue, shall be construed to require said bonds 
to be given hereafter every year.” John J. White, Sp. J. : “With regard 
to this section of the act, with the highest respect for the legislature as 
a co-ordinate branch of the government, we are constrained to say that 
we regard it as clearly an unconstitutional enactment, and, whenever 
that is the case, it becomes the solemn duty of the judiciary so to 
declare it, as the Constitution is the paramount law. The argument 
upon this point may be stated in few words. Under the Constitution 
the powers of the government are divided into three distinct depart¬ 
ments— the legislative, executive, and judicial. And each department 
is prohibited from exercising any of the powers properly belonging to 
either of the others. It is upon this division of power that the security 
of the citizen, as well as the limitations upon power contained in the 
Constitution, mainly depend for their preservation. To the legislature 
belongs the power of enacting such laws, withiu the limits of the Con¬ 
stitution, as the policy of society and its varying interests may seem to 
require. But, after their enactment, it is then the province of the 
judiciary to ascertain their meaning, and determine upon their construc¬ 
tion. Any other doctrine would destroy the checks contained in the 
Constitution against the abuse of power, and tend to a concentration of 
all power in a single department of the government. It is unnecessary 
to dwell upon this point farther than merely to say the legislature of 
1835 enact a law in reference to the collection of the revenue. That 
of 1839-40, without repealing that law or enacting a different one, 
so far as the first section of the act is concerned, which we are now 
considering, which it was perfectly competent for them to do, undertake 
to say what is the meaning of the former law, and to decide upon its 
construction. This, we think, was beyond their power.” 24,167. The 
Governor v. Porter and Sureties. 1844. 

Legislature Has No Power to Discharge a Criminal by Resolution — 
Cases Distinguished.— Turley, J.: “This was a prosecution on behalf 
of the State against Andrew Fleming and Alfred G. Cosby for retailing 
spirituous liquors contrary to the provisions of the Act of 1883, ch. 120. 
Pending the prosecution and before conviction, the legislature passed 


DISTINCT DEPARTMENTS OF GOVERNMENT. 


247 


the Act of 1846, ch. 90, by which, under certain restrictions, it became 
lawful to retail spirituous and other liquors. At the same session, and 
subsequent to the passage of the act, it was resolved that 1 no fine, for¬ 
feiture or imprisonment should be imposed or recovered for the oflense 
of tippling, under the Act of 1837, and that all causes pending in any 
of the courts for such offense should be dismissed/ Subsequent to the 
passage of this statute and resolution, but before their promulgation, 
the defendants were tried and convicted of the offense with which they 
were charged in the Circuit court of Rutherford, and fined; before the 
judgments were executed the defendants, by petition, superseded them 
upon the ground that the resolution of 1846 freed and discharged them 
from all responsibility for the offense for which they were indicted, and 
asked that judgments against them might be vacated. This the circuit 
judge, upon hearing the petition, directed to be done. From which the 
attorney general appeals to this court. The question presented for our 
consideration is whether the resolution of the legislature passed in 1846 
is a constitutional exercise of power. And we think it is not. The 
passage of the Act of 1846, authorizing, under restrictions, the sale of 
spirituous aud other liquors, did not upon any principle operate so as 
to discharge persons guilty of retailing under the Act of 1838, but they 
were left liable to punishment under the provisions of the act, and the 
question reduced to simplicity is this, Cau the legislature, by resolution, 
direct that an individual who stands charged with crime in the court of 
justice be discharged therefrom? The mere statement of the question, 
it seems to us, answers it necessarily in the negative. 

“The powers of the State of Tennessee are vested in legislative, 
executive and judicial departments, each separate and distinct from the 
other, with their power and duties well defined by the Constitution, 
and by which each is kept within its appropriate sphere of action. The 
legislature can make the law, but the courts must expound it and exe¬ 
cute it, with the aid of the executive, when his action may become 
necessary for that purpose. The legislature has no power to interfere 
with the administration of justice, either criminal or civil, in the courts; 
a resolution that a criminal, or a class of criminals, shall be discharged 
by the court is then necessarily an assumption of power not warranted. 
After conviction the governor may pardon, but, before conviction, the 
attorney general and the court are the only power that can discharge 
without acquittal, and this by nolle prosequi. We are, therefore, con¬ 
strained to hold that the resolution under which these defendants 
claimed their discharge is void for want of power in the legislature to 
pass it. The case is not similar to that of the School Commissioners v. 
McEwen, in which we held that the legislature might release, by resolu¬ 
tion, a debt due to the State, which we have again held at this term of 
the court in the case of Pepper v. The State. II the legislature had 


248 


TENNESSEE CONSTITUTIONAL LAW. 


passed a resolution releasing the funds due to the State by judgment 
after conviction, in the cases sought to be provided for, instead of direct¬ 
ing that they should be discharged, it would have fallen with the prin¬ 
ciples of the cases referred to, and would ha/e been a constitutional 
exercise of power which would be enforced by the courts.” 26, 153. 
The State v. Fleming et al. 1846. 

Legislature May Make Laws at Its Discretion — Parties Insisting 
TJpon Unconstitutionality of an Act Must Point Out Clause—Speculating 
in Witness Fees—Art. 1, Sec. 8; Art. 11, Sec. 8.— An *act to prohibit 
speculation in witness fees and other fees originating in courts, passed 
March 31, 1879, ch. 40, was considered in this case. Cooper, J.: “The 
defense is rested upon the unconstitutionality of the act, and the argu¬ 
ment submitted in support thereof is made to turn on general principles, 
rather than on any specific provisions of the Constitution. The right of 
the citizen to freely dispose of his property, and the absence of sub¬ 
stantial evil to be met by the legislation, have been more discussed 
than the inherent power of the legislature. It is the settled rule in 
this State, as in the United States generally, that the legislature has 
unlimited power of legislation, except so far as it is restrained by the 
Constitution of the United States, and the Constitution of the State of 
Tennessee. Hope v. Deaderick, Bell v. Bank of Nashville. The legisla¬ 
tive department is not made a special agency for the exercise of 
specifically defined legislative powers, but is intrusted with the general 
authority to make laws at discretion. They who insist upon the uncon¬ 
stitutionality of an act must point out the specific provision of the Con¬ 
stitution which is violated. 2 The court can only interpose upon a plain 
violation of some positive provision of the organic law. Whether a 
statute is ‘contrary to the genius of a free people/ is a question for the 
legislator, not the judge. It can not be annulled upon supposed natural 
equity, the inherent rights of freemen, or any general and vague inter¬ 
pretation of a provision of the Constitution beyond its plain and obvious 
import. 

“The only citation from the Constitution made in the argument is 
the eighth section of the Bill of Rights. . . . And it is argued that 

the act in question, although in form a prohibition, against the purchase 
of fees of witnesses, is in fact a restraint upon the free disposition by the 
witness of the fees as property, and pro tanto a deprivation of an important 
element of property. But the claim of a witness for the fees allowed 
him by law is only a chose in action, not assignable by the common law. 
The legislature has made such claims assignable, and it is clearly within 
its competency to take away that quality. With either the wisdom or 
policy of such legislation the courts have nothing to do. . . If 


1 See Acts 1879, ch. 210, sec. 1. 


2 See Chadwell v. Jones, Teun. Chc’y. Rep., vol. 1 , p. 493. 



DISTINCT DEPARTMENTS OF GOVERNMENT. 


249 


there is any provision of the Constitution which can be considered as 
-contravened by the act in question, it is art. 11, sec. 8. . . . But it 
is obvious that this clause of the Constitution only prohibits the suspen¬ 
sion of a geueral law, or the grant of privileges, immunities or exemp¬ 
tions to an 1 individual’ or ‘individuals.’ It does not prohibit legislation 
tor the benefit of classes composed of any members of the community 
who may briug themselves within the class. . . . The act under 

consideration was intended to prevent speculation in witness fees. It 
makes the purchase of such fees for less than their face value a misde¬ 
meanor, but, it is added, the provisions of the act shall not apply to 
witness fees traded for merchandise or hotel bills. . . . The legisla¬ 
ture intended to break up a particular kiud of speculation in these fees, 
which it thought detrimental to the public iuterest, without interfering 
unreasonably with the witness’ right of using the fees in the ordinary 
course of business. Of the wisdom of the legislation, the law-making 
power is the exclusive judge. Our duty is to enforce it, if not violative 
cf the organic law.” The act was declared constitutional. 71, 376. 
Davis v. The State. 1879. 

Legislature Can Not Direct How Statutes Shall be Construed — How 
-to be Construed With Reference to the Constitution. — In this case the 
Supreme court made the opinion of Baxter, circuit judge, its opinion. 
Judge Baxter said: “The legislature has not the constitutional power 
to construe a statute, or to give a mandate to the courts as to how they 
.-shall construe them, and, if the Act of the 5th of July was nothing 
more than such a mandate, it was unconstitutional and void, aud would 
cot require to be repealed to render it invalid. The courts will never 
construe a statute unconstitutional if it will admit of any reasonable 
construction consistent with the Constitution. In construing statutes, 
we look at the objects aimed at by the legislature, and not to the partic¬ 
ular verbiage in which a statute, in some of its parts, may be expressed. 
If the real object aimed at is within legislative competency, aud cau be 
clearly seen from the whole statute taken together, the history of the 
prior legislation upon the same subject, the court will not be turned 
^aside by particular expressions, which, taken by themselves, might 
.seem to indicate that the legislature was assuming to transcend its con¬ 
stitutional power, but will give effect to the will of the legislature thus 
•discovered. . . . 

“It is most manifest that it was not the deliberate inteutiou of the 
legislature, by the Act of July 7th, to repeal the Act of July 5th. Both 
.acts were before the legislature at the same time, there being but two 
•days’ difference in their dates. It is provided by the Constitution that 
every bill shall be read once on three different days, and passed each 
time, in the house where it originated, before transmission to the other 
house. No bill shall become a law until it shall have been read aud 


250 


TENNESSEE CONSTITUTIONAL LAW. 


passed on three different days in each house, etc. It follows that the 
Act of July 5th must have been passed after the Act of July 7th had 
passed at least four, and perhaps five, readings before the same legisla¬ 
ture; and can it be supposed that the legislature would have been 
guilty of the consummate folly of passing an act at a time when they 
had a bill repealing it, which had already passed four (perhaps five)- 
readings? It would seem to be altogether disrespectful to the legisla¬ 
ture to impute to it such folly. If the legislature had intended to repeal 
the Act of July 5th, why should they pass it? Why not vote it down? 
It can not be answered that after its passage the views of the legisla¬ 
ture underwent a change, because the repealing statute had been 
framed and passed several readings before the final passage of the act 
which it is insisted was repealed. I, therefore, feel well assured that 
the legislature did not intend to repeal the Act of July 5, 1870, and if 
the Act of July 7th is susceptible of that construction, it was an inad¬ 
vertence, and not the intention, of the legislature.” 60, 317. Arrington 
Trustee v. Cotton. 1872. 

Supreme Court — Judgment of When Court is Equally Divided — 
Legislature Can Not Direct How it Shall Be. — The question was the 
constitutionality of the Act of March 6, 1875, providing “that in all 
cases now pending in the Supreme court, or hereafter brought thereto r 
in which the judges shall be equally divided, the judgment shall be 
determined as follows: “If the case depend upon the constitutionality 
of any act of the general assembly, then such judgment or decree 
shall be in favor of the validity of such an act. In all other cases the 
judgment or decree of the court below shall be affirmed.” 

By section 2 of the schedule to the Constitution of 1870, it was pro¬ 
vided that six judges should compose this court until there should be a* 
vacancy occurring after January 1, 1873. Freeman, J.: “The question 
is, had the legislature the power under the Constitution to enact what 
judgment should be rendered in such cases? . . . The court thus 

constituted was the supreme judicial tribunal of this department of 
the government. Its function was to decide all cases on the law and 
facts that might be brought before it in accordance with the jurisdic¬ 
tion conferred by the Constitution. In accordance with the genius of 
such an organization, a majority of the court would be required to 
render a decision, for if this was not the case, then a minority might do¬ 
it, a conclusion to which no one, we take it, would assent. In any court r 
however, whatever decree the court shall give must be the result of its 
own judgment in performance of the functions assigned it by the Con¬ 
stitution. No other department of the government has* the right to 
indicate or dictate what the judgment shall be. This would be to usurp- 
the judicial function, confided exclusively by the Constitution to ther 
judicial department. 


DISTINCT DEPARTMENTS OF GOVERNMENT. 


251 


“Whether the legislature might or might not have enacted a rule 
for the government of the court on this subject in the future, may be 
possibly a different question, but that it could prescribe what the court 
should do in cases then before the court, we think it beyond all ques¬ 
tion to overstep the line limiting their power under the Constitution. 
However, we may say, it would seem difficult to distinguish in principle 
between the two cases, that is, on an enactment operating on cases 
then pending, and on future cases. In either case, it is not to prescribe 
a rule of future conduct to the citizen, which is the essential element of 
the law operating on the rights of a citizen, but would be to dictate a 
judgment for the court not based on the law and facts in the case, but 
upon a certain state of opinion as held by the judges of the court, in 
which a certain result is required to be entered as the judgment of the 
court. This judgment, it is evident, would be the judgment or the result 
declared by the legislature, and not by the court. In addition, if the 
legislature should say an affirmance should be the result of an equal 
division of the members of the court in opinion, why not with the same 
propriety say that a minority should govern} or that the then oldest, 
judges agreeing, or the then youngest; or, to reduce it to an absurdity, 
the three judges who should weigh the most; or any other arbitrary 
rule that body might choose to adopt? We can not see where the limit- 
shall be fixed in such a case, except at the discretion of the legisla¬ 
ture, if we once admit they can fix any rule at all on the subject. It 
may as well have been required that the opinion of the chief justice 
should have the right to decide the case, or his opinion should be the 
basis of the decree, or that a certain decree should be rendered because 
the court could not agree upon one for itself. This last is certainly the 
leading feature of the law before us, that is, where the court can not 
agree upon an opinion or judgment, one is presented by the legislature 
arbitrarily, regardless of the merits of the case before the court. This 
certainly is a usurpation of the judicial function, and far from the true 
principle of legislative or law-making action. . . . 

“The result would be that at one term, under the direction of the 
legislature, the court would enter up a judgment giving the party a 
decree in his favor in a certain state of facts, or holding a certain law 
to be constitutional and valid. At the next term, on precisely the same 
state of facts, upon further consideration the court in its opinion would 
hold a different judgment should be the result of these facts; and in 
the other case, that the same law was unconstitutional and void. It. 
may be said, the court in any case or either case might change its 
opinion and overrule its former holding. This is very true, but in the 
one case, it would be the reversal or overruling the opinion or mandate 
of the legislature; in the other the opinion of the court, as formerly 
announced. It could not be said in the first case that the court had 


252 


TENNESSEE CONSTITUTIONAL LAW. 


changed its opinion or overruled the law as held in the former opinion, 
because the court had given no such an opinion, had made no such 
ruling as the law; while in the other, this would accurately express 
what was done. This view brings out clearly the true idea that under¬ 
lies this enactment, that is, that the judgment required to be rendered 
is that of the legislature and not of the court nominally rendering it. 
We hold, therefore, the act to be void for these reasons.” ^enn. Leg. 
Rep., vol. 1, p. 15. Perkins Trustee v. Scales et al. 1877. 

Limits of the Judiciary — Legislative Policy.— COOPER, J.: “Very 
earnest and able arguments have been submitted by the learned counsel 
of the complainants upon the policy of the State, county and incorporated 
towns being all allowed to tax a citizen for school purposes, thus sub¬ 
jecting him to be thrice taxed for the benefit of education. It has been 
earnestly insisted that the system authorized in this case is not for the 
best interest of the inhabitants of the town corporation, and works 
oppressively. But, of course, the courts have nothing to do with the 
policy of the laws, and can not interfere merely because in some instances 
they may work harshly. These are arguments to be submitted to the law¬ 
making power, or to the people, to influence them in selecting their rep¬ 
resentatives, both in the State legislature and the corporation council. 
Our duty is limited to pronouncing on the constitutionality of the act. 
We are expressly forbidden by the Constitution itself to exercise any of 
the powers properly belonging to the legislative department.” 83, 649. 
2 Ballentine v. Mayor etc. of Pulaski. 1885. 

Legislation Procured by Fraud and Bribery. 

No Judicial Action Can be Based on a Ground So Derogatory to a 
Co-ordinate Branch of the Government.— CaKUTHERS, J.: “This suit 
was brought and recovery had upon a bill of exchange held by the 
plaintiff below, as a corporation, against the defendant. Several ques¬ 
tions are made in defense. 1. That the charter was fraudulently 
obtained. 2. The act was passed without taking the ayes and noes on 
the last reading. 3. That it was repealed by the legislature at its last 
session and before the trial of this suit, and therefore no recovery could 
be had, as the corporation was dissolved. 

“On the first point, it is urged that some one or more members of 
the legislature of 1853-4, whose names are not given, offered sections 
68 to 75, as amendments to an act entitled ‘An Act to incorporate the 
mna Mining and Manufacturing Company, and for other purposes/ 
incorporating this and another company for mining and manufacturing 

1 See Mayor etc. of Chattanooga v. N. & C. R. R. Co., art. 2, sec. 28. 

2 See same case, art. 1, sec. 8, p. 62; art. 2, sec. 17; art. 2, sec. 28; art. 2, sec. 29; art 11 sec 8- 
art. 11, sec. 12. 



DISTINCT DEPARTMENTS OF GOVERNMENT. 


253 


purposes, which sections, after enumerating the ordinary powers of a 
corporation, have the following enlarging and amplifying clause, that 
whenever the said companies are ‘organized according to the provisions 
of the foregoing sections, in addition to the powers therein enumerated, 
they shall have all the powers, franchises, rights, privileges , and immu¬ 
nities conferred upon the corporation and body politic created by an act 
passed December 27, 1843, ch. 60. 1 By reference to the Act of 1843, ch. 
GO, it is found to be ‘An Act to charter the Bank of East Tennessee/ 
The argument is that these sections were designed and fraudulently 
offered in the hurry of legislation, and on the third reading of the bill,, 
and that they were voted for by a majority, without reference to the 
Act of 1843, and without knowing that they were creating two new 
banks. There are some insurmountable obstacles to arriving at this- 
conclusion, although it must be admitted it is strongly favored by the 
surrounding circumstances. In the first place, it can not be presumed 
that any one honored with a seat in the legislature would be so corrupt 
as to knowingly and designedly attempt such a fraud and imposition; 
and, secondly, that both the majority and minority were so ignorant, or 
careless, in the discharge of their duties as not to know the powers 
they were conferring upon these new corporations by the adoption of 
the acts to which reference was made. The hypothesis assumed — that- 
is, that a part of the law-making body were capable of an attempt to 
dupe and deceive their fellows, and that the latter could be thus 
imposed upon in the discharge of the important trusts confided to them 
by their constituents—would, if established, be calculated to destroy 
all confidence in that most vital and important branch of the govern¬ 
ment. 

“No judicial action, then, can be based upon a ground so derogatory 
to a co-ordinate department, and so destructive of all confidence in the 
representative system. . . . We need not, nor do we, say now 

whether a case could or could not be made out which would authorize 
the courts to disregard an act of the assembly upon the ground of fraud 
and imposition in procuring its passage. This case does not, in its facts,, 
call for a discussion or any opinion on that question.” 2 53, 623. 'Fer¬ 
guson v. Miners and Manufacturers’ Bank. 1856. 


1 See same case, art. 2, sec. 18; art. 2, sec. 21: art. 11, sec. 8. 

3 The Reporter on p. 625, quotes from Fletcher v. Peck. 6 Cranch, 87, the language of Chief 
Justice Marshall on this question as follows: ‘ That corruption should find its way into the gov¬ 
ernment of our infant republics, and contaminate the very source of legislation, or that impure 
motives should contribute to the passage of a law, or the formation of a legislative contract, are 
circumstances most deeply to be deplored. How far a court of justice would in any case be com¬ 
petent, on proceedings instituted bv the State itself, to vacate a contract thus formed, and to 
annul rights acquired under that contract by third persons, having no notice of the improper 
means bv which it was obtained, is a question which the court would approach with much cir¬ 
cumspection. It mav well be doubted how far the validity of a law depends upon the motives of 
its framers, and how far the particular inducements operating on members of the supreme 
sovereign power of a State, to the formation of a contract bv that power, are examinable in a 
court of justice. If the principle be conceded that an act of the supreme sovereign power might 
be declared null bv a court, in consequence of the means which procured it, still there would be 
much difficulty in'saving to what extent those means must be applied to produce this effect. 
Must it be direct corruption, or would interest or undue influence of any kind be sufficient? 



254 


TENNESSEE CONSTITUTIONAL LAW. 


No Department Can Sit in Judgment Upon the Conduct of Another 
— Each Supreme in Its Sphere—Passage of Law by Corrupt Means — 
Remedy is to Repeal It—Duty of the Governor—Extra Session.— On© 
•question here was, had the court jurisdiction, upon proof of allegations 
that a bill had been passed by corrupt means to set the law aside? 
McFarland, J. : “I am satisfied, upon the most careful consideration, 
that it has not. This seems to me to be manifest from the organization 
of our form of government. The government of the State is divided 
into three departments — the executive, legislative, and judicial. The 
three combined represent the entire sovereignty of the State. Powers 
vested exclusively in one department, can not rightfully be exercised by 
the other. The legislative power is certainly vested in the general 
assembly, and it is certain that the courts can exercise no part of this 
powerj nor can either of these departments rightfully undertake to 
determine with what degree of fidelity the other has met its obligations. 
For this court to exercise the jurisdiction invoked, would be to assume 
that the co-ordinate departments of the government are liable to cor¬ 
ruption, but we are not. If we were to take jurisdiction, and determine 
that this act was passed by bribery and corruption, the legislature would 
have the same right to enquire whether or not our judgment was pro¬ 
cured by the same means. These departments, within their spheres, 
are so far omnipotent that they possess all the powers of the State 
belonging to that department, and in the exercise of these powers they 
are independent, neither being subject to the will or supervision of the 
other. The members of the general assembly, like the members of this 
court, are responsible to the people who elected them for the manner 
in which they discharge their trust 5 and they may be impeached in the 
manner pointed out by the Constitution. The people may relieve them¬ 
selves of the consequences of the corrupt and faithless acts of their 
representatives, but it was never contemplated that one department 
should sit in judgment upon the conduct of the other. If so, we might 
set aside pardons granted by the executive, upon the ground that they 
were corruptly granted, and the executive department might in turn 
refuse to permit our judgments to be executed, upon the ground that 
they were corruptly rendered; and from the collision and conflict, con¬ 
fusion and chaos would result. If we should take jurisdiction of this 
question, and an issue of fact be formed, it would then have to be tried 


Must the vitiating cause operate on a majority, or on what number of members ? Would the act 
be null, whatever might be the wish of the nation, or would its obligation or nullity depend upon 
the public sentiment ? 

“ If a majority of the legislature be corrupt, it may well be doubted whether it be within the 
province of the judiciary to control their conduct; and if less than a majority act from impure 
motives, the principle by which judicial interference would be regulated is nofclearly discerned 
... It would be indecent in the extreme, upon a private contract between two individuals to 
enter into an inquiry respecting the corruption of the sovereign power of a State If the title be 
plainly deduced from a legislative act, which the legislature might constitutionallv pass, if the 
act be clothed with all the requisite forms of a law. a court, sitting as a court of law,* can not sus¬ 
tain a suit brought by one individual against another, founded on the allegation that the act is a 
nullity in consequence of the impure motives which influenced certain members of the leeis- 
lature which passed the law.” s 



DISTINCT DEPARTMENTS OF GOVERNMENT. 255 

upon the rules of testimony applicable to civil cases; ouly, a prepon¬ 
derance would be necessary to establish the allegations of the bill, or, 
as held by a majority of this court, only a slight preponderance; so 
that, if it be shown by a slight preponderance of testimony that one of 
the senators who voted for this bill was corrupted, we would then be 
compelled to declare that the act was not the will of the legislature, 
although, it could not appear that the bribed member might, notwith¬ 
standing the bribe, have voted for the bill, and notwithstanding the bill 
was passed with all the forms of law. And, besides, this result would 
be reached in a case to which neither the State or the impeached mem¬ 
ber is a party, or has the right to be heard, and where we would have 
no right to consider whether improper influences may have affected the 
-other side of the controversy. . . . The remedy, where the passage 

of a law has been improperly obtained, is to repeal it, either by the 
same or by some succeeding legislature, and the wrong sustained in the 
meantime is generally not irreparable; and, besides, the remedy, by 
repealing the law, can be more promptly applied by the legislature than 
by the courts. ... If satisfied that the law was procured by bribery, 
it is a question for the consideration of the governor as to whether or 
not he will call the legislature together on the subject, and for that body 
to determine whether, for this or any other reason, the law should be 
repealed. It does not meet the question to say that they will not per¬ 
form this duty. They have the power; we have not. And even after 
the law has been executed, and the bonds issued, if it should appear 
that, by corruption and bribery, an unjust debt has been assumed iu the 
name of the State, its good faith and honor would not require the 
-obligation to be met; and whether it would or not, would be a question 
for the people, through their representatives to consider, as the State is 
sovereign and can not be coerced. So that, whether future legislatures 
would recognize the obligation, would be a question for them, and the 
people in their sovereign capacity need no relief from the courts.” 
Judge Freeman dissented, and Judge Turney expressed no opinion. 
76, 229. x Lynn et al. v. Polk et al. 1881. 

Statutes—Passage of—Fraud — Motive — Repeal. — The act Consid¬ 
ered was that of 1890 (extra session) ch. 33. Caldwell, J.: “It is 
alleged that this act was conceived, and its passage procured by private 
persons for sinister motives; that the lines were irregularly and arbi¬ 
trarily run (as described on the first page of this opinion) for the 
purpose of oppressing complainants by including their property, and 
favoring certain rich corporations and wealthy persons by excluding 
their property; that this was the result of an agreement between the 
persons and corporations to be excluded and a few members of the 


1 See same case, art. 1, sec. 17, p. 128, and art. 1, sec. 20, p. 199. 



256 


TENNESSEE CONSTITUTIONAL LAW. 


legislature, and was a fraud on the legislature and on the rights of ther 
property owners included. The facts here charged, if admitted to be 
true (as they are by the demurrer) do not render the act void. 

“That a bill is inspired by private persons for their own advantage, 
and to the detriment of others, is clearly not a sufficient reason for 
holding the law void when passed. Nor can the courts annul a statute 
because the legislature passing it was imposed upon and misled by a 
few of its members in conjunction with interested third parties. If the 
act in question is unwise and oppressive, the evil may be remedied by 
repeal or amendment. The courts have nothing to do with the policy 
of legislation, nor the motives with which it is made.” 89, 495. 1 Will¬ 
iams v. Nashville. 1891. 

The Executive Department. 

The State—Its Nature — Being an Ideality it Can Only be Conceived 
of Through Its Functionaries — The Governor of the State is a Corpora¬ 
tion Sole — Bonds Made Payable to Him.—TURLEY, J. “The Governor 
constitutes the executive department of the State ; he is vested by the 
Constitution of the State with great and important powers to be 
executed for the benefit of the State, and it is absolutely necessary that- 
there should be no interregnum in his office, to avoid many and great 
inconveniences; this can not be unless we apply to him the maxim off 
the common law, applicable to the king, that he never dies; this maxim 
of the common law (like most if not all of them) is based upon wise 
conceptions, and not upon any foolish reverence for kings or belief in 
their sanctity or immunity from the common lot of mankind, but upon 
the necessary assumption that the State, which protects and cares for 
all, never ceases to exist, but that it is always alive and active in the 
performance of its duties to the citizen. The State, being an ideality, 
can only be conceived of through the public functionaries who consti¬ 
tute the different departments by which it exists; therefore to hold that 
it never dies is necessarily to hold that those who constitute its neces¬ 
sary departments never die; the departments by which the government 
of Great Britain exists are the king and houses of parliament; the king 
is the executive of the nation, and he and the two houses of parliament 
are the legislature; there is never in contemplation of law an interreg¬ 
num in either of these departments, for the law-making and the law¬ 
executing power being absolutely necessary to the existence of the 
State, if they cease to be, the State pro tempore ceases to exist, which 
would be a solecism in a government not destroyed by invasion or rebel¬ 
lion, and thrown back upon the primitive principles of society. The- 
governor of this State is the executive of it; it is one of his duties,. 


1 See same case, art. 1, sec. 8, p. 63; art. 2, sec. 19; art. 11, sec. 8. 



DISTINCT DEPARTMENTS OF GOVERNMENT. 


257 


among many others, to see that the laws of the State are executed and 
obeyed; this is a great and fundamental duty, without the proper 
observance of which society might and would necessarily be greatly 
distracted, and the proper security of life, liberty, and property seriously 
endangered for the purpose of enforcing the execution of the laws, and 
the protection of the State from rebellion and invasion; he is the com¬ 
mander of the forces of the State; to hold that there can be an inter¬ 
regnum in this office would be to hold to the temporary anarchy of the 
State; and in order to hold that there is no such interregnum we must 
hold that the governor, as such, never dies; to do this he must be a 
corporation sole, with succession in office. Such we think he is, consti¬ 
tuted so by the organization of our*State government, and not by any 
particular statute or statutes; and therefore when bonds are directed 
to be made payable to him in his official capacity, they are payable to 
him in his capacity as a corporation sole quoad that particular transac¬ 
tion.” 27, 181. The Governor v. Allen et al. 1847. 

Repugnancy to the Spirit of the Constitution—Exercise of Judicial 
Power by the Governor—Act Empowering Him to Annul Registration of 
a County, Void.— Smith, J.: “This court does not entertain the notion 
that it is authorized to declare a statute void, because of repugnancy 
to the spirit of the Constitution. Considerations of this kind, are prop¬ 
erly addressed to the legislative body. Courts only act, when the con¬ 
flict is shown with an express provision of the organic law, or with a 
necessary implication from an express provision. Instances of such 
implication are found in cases, as when the delegation of an express 
power to one department of the government, is held to be by necessary 
implication, the prohibition of the exercise of the power by another 
department; or when the delegation of a power to the national govern¬ 
ment, is held to be the negation of the power to the State government. 
It is scarcely necessary, however, to resort to implication, in the aspect 
of the case proposed to be shown, to find valid ground on which to rest 
the objection to the organic validity of the act under consideration. 

“The form and plan of the Constitution of the State, expressed in 
the whole and in the parts, declare, organize and establish, a system 
and form of government, popular, elective, republican, wherein sover¬ 
eignty is in the electoral body of the people. This is expressed in and 
by the clauses which delegate, reserve, restrain and distribute the 
powers of government among the several departments and officers, for 
the purpose of maintaining and enforcing checks and balances upon the 
several functionaries, and so securing the liberties and rights of the 
people, and a popular, elective and republican form of government. 
The statute which empowers the governor, in his discretion, practically 
and effectually to abrogate the right to vote, of any and every qualified 
citizen of the State; and at any time and for all time, and in any and 


17 


258 


TENNESSEE CONSTITUTIONAL LAW. 


all elections, is repugnant to that portion of the Constitution which is 
expressly ordained to secure to the people, the right to elect the officers 
of the government. 

“The statute which practically and effectually empowers the gov¬ 
ernor to determine who, of the qualified citizens, shall vote and who 
shall not vote, and who shall elect and who shall not elect, the officers 
of the government, himself included, is repugnant to that portion of 
the organic frame of the government, which was ordained to establish 
and maintain a republican form of government. The statute which 
empowers the governor, practically and effectually to divest out of any 
and every qualified voter, his right to vote, not only once, but from time 
to time, and without end, is repugnant to those provisions of the organic 
law which are ordained to invest the courts with judicial power, and to 
exclude the executive head of the government from the exercise of such 
power. For these reasons, the court is constrained to hold, that the 
statute which confers on the governor the power to set aside and annul 
the registration of a county, in whole or in part, is unconstitutional and 
void. In this determination, are included the Act of March 8, 1867, ch. 
36, secs. 4 and 5 ; and that part of the Act of February 26, 1868, ch. 52, 
so far as it authorizes the governor to set aside registration, and under¬ 
takes to confirm his acts of this kind, done before the passage of the 
act; and to punish persons who vote, or who attempt to vote, ‘by virtue 
of certificates issued from a registration declared null and void’ by the 
governor.” 46, 252. 1 The State v. Staten. 1869. 

Courts Have No Power to Issue a Writ of Mandamus Against the 
Governor — Reasons for This, and Results if Otherwise — Doctrines in 
Other States.—M cFarland, J.: “Have the courts of this State any 
jurisdiction by mandamus to compel the governor to perform any duty 
devolved upon him as governor by the Constitution and the laws? As 
to purely executive or political functions devolving upon the chief 
executive officer of a State, or as to duties necessarily involving the 
exercise of official judgment and discretion, we think it may be safely 
assumed that mandamus will not lie. This necessarily results from the 
nature of a government having three independent departments—execu¬ 
tive, legislative and judicial. Such is the doctrine well settled by 
authority. See High on Extraordinary Remedies, sec. 118. . . . The 

Supreme courts of Ohio, Alabama, California, Maryland and North Carolina 
have decided in favor of the jurisdiction in cases where it was claimed 
the duties were ministerial, the cases presenting the question in different 
aspects; while opposed to the jurisdiction are the Supreme courts of 
Arkansas, Georgia, Illinois, Louisiana, Maine, Minnesota, New Jersey, 
Rhode Island and Missouri. We will not undertake to review the sev- 


1 See same case and note, art. 1, sec. 8, p. 42; art. 4, sec. 1. 



DISTINCT DEPARTMENTS OF GOVERNMENT. 


259 


eral cases, or to distinguish them. We have, however, examined the 
reasoning in the several cases, and our own convictions are decidedly 
against the exercise of the jurisdiction, and we are of opinion that 
there can, as to its exercise, be no sound distinction in respect to the 
character of the act to be performed by the governor as chief executive. 

“ In the very nature of such a government each department within 
its sphere must be independent of the other, and neither can rightfully 
interfere with the others in the discharge of their appropriate duties. 
And whatever duty or function is devolved upon either department 
becomes a part of its appropriate or exclusive duties. And in the case 
of the governor it does not change the result that the duty might have 
been imposed upon a ministerial officer, and if imposed upon a minis¬ 
terial officer, he might have been compelled to perform it. It does not 
follow that when the duty is imposed upon the governor, the courts 
have jurisdiction to control his acts. The governor holds but one office, 
that is the office of chief executive. Any duty which he performs 
under authority of law is an executive duty, otherwise we would have 
him acting in separate and distinct capacities. In some respects he 
would be the chief executive and independent department of the gov¬ 
ernment; as to other duties he would be a mere ministerial officer, sub¬ 
ject to the mandate of any judge of the State, and we must assume 
also that the judge would have the power to imprison the governor if 
he refused to obey his order, for if the court has this jurisdiction, the 
power to enforce the judgment must follow. 

“ It is said if this jurisdiction be not granted there is no remedy in 
cases where the governor refuses to perform his duty with respect to 
the rights of the citizens. If the duty of performing a certain act is 
by law devolved upon the governor, and in the exercise of his judgment 
and discretion — and it is difficult to imagine any act to be performed 
by a governor where some degree of judgment and discretion is not 
involved—he decides against the claim of the citizen, the citizen has 
had his remedy. If the governor corruptly act in violation of law and 
right, he may be impeached. It does not follow because the right 
claimed depends upon a construction of our laws that the courts must 
therefore decide it. The courts can only decide in those cases where 
bylaw they have jurisdiction.” 67, 491. Turnpike Co. v. Brown. 1875. 

Mandamus — Duties, Executive and Political — Province of Courts.— 
This was a bill filed by Creed F. Bates to compel Governor R. L. Taylor 
to deliver to him a certificate of election and to prevent the issuance of 
one to H. Clay Evans, the other applicant. Caldwell, J.: “It is well 
settled by all the authorities that mandamus will not lie to compel the 
governor of a State to perform duties of a purely executive or political 
nature, involving the exercise of official judgment or discretion; but 
the decisions are wide apart as to the power of the courts to compel 


260 


TENNESSEE CONSTITUTIONAL LAW. 


him to discharge those duties which, as to other officials, are usually 
called ministerial. . . . We have no hesitation in holding that the 

courts have no jurisdiction to compel the governor to deliver to com¬ 
plainant the certificate claimed by him. No more have they the power 
to restrain him from issuing a certificate to the other applicant. If the 
governor can not be compelled by mandamus to deliver a certificate of 
election to one person, it follows that he can not be restrained by 
injunction from delivering it to another person, for the nature of the act 
to be performed by him is precisely the same in one case as in the other, 
and the same considerations operate to defeat the jurisdiction of the 
courts in both instances. . . . Let us illustrate the connection, and 

at the same time the independence, of the three departments of the gov¬ 
ernment: The legislature should never pass nor the governor approve 
an unconstitutional law. Yet, because the duty of enacting laws rests 
upon the one, and that of approving or disapproving them upon the 
other, the courts can not restrain the former from passing nor the latter 
from approving a statute obviously unconstitutional. While acting in 
their own appropriate spheres the legislature and the governor must be 
allowed to judge of the unconstitutionality of the law for themselves. 
After they have acted the judiciary may act, and, at the suit of some 
interested party, annul the law because violative of the Constitution. 
Thus the integrity and independence of each department are preserved, 
conflict between them is prevented, and the injurious operation of an 
unconstitutional law is averted.” 1 2 87, 322. Bates v. Taylor. 1889. 

The Judicial Department. 

Three Departments of Government a System of Checks and Balances— 
Delegation of Power by the Legislature — Acts Authorizing Courts to 
Grant Charters Void — Power to Establish Corporations. — The act under 
consideration was ch. 254, passed February 26, 1856, and conferring 
upon the Circuit courts the power to grant charters. McKinney, J. : 
“The multiplication of corporations of various kinds, in several of the 
American States, has long been regarded as a serious evil by many of 
our most enlightened statesmen and jurists. It has been attempted, in 
some of the States, to check their increase by constitutional restric¬ 
tions. Such was the purpose of the provision in our amended Consti¬ 
tution, limiting the creations of corporations to such as might be deemed 
‘expedient for the public good. 12 The rage for corporations is not easily 
to be checked. . . . The attempts to facilitate their multiplication by 
the act under consideration is alarming to every reflecting mind. A local 

1 M. & V., 1094. 

2 The last clause of art. 11, sec. 7, of the Constitution of 1834, referred to in this opinion is 
omitted from the Constitution of 1870, art. 11, sec. 8, which says that “ the general assembly shall 
provide by general laws for the organization of corporations,” etc. It follows, therefore, that 
this opinion is valuable only in so far as the discussion of the omitted clause is an essential part 
of the discussion pertaining to the powers of the respective departments of our State government 



DISTINCT DEPARTMENTS OF GOVERNMENT. 


261 


tribunal is constituted in each county of the State, with full power to 
create corporations of every sort—municipal, public or private, eccle¬ 
siastical or lay, civil or eleemosynary — and for every possible purpose 
within the scope of the Constitution and general laws. No other restric¬ 
tion upon the powers to be granted is to be found in the act except the 
prohibition in respect to 1 banking powers.' 

“ A remarkable feature of the act is that the persons seeking to be 
incorporated are at liberty to claim and prescribe for themselves, as a 
matter of right, whatever rights, powers and privileges they may choose 
to exercise. In this respect the court has no discretion. . . . The 

powers granted to different corporations, for the same general purposes, 
may be as diverse and conflicting as are the views and opinions of the 
different tribunals granting them. . . . Aud the corporate body so 

constituted is wholly irresponsible to the public or to individuals with 
whom it may have dealings, no security or indemnity being required by 
the act. Its charter is perpetual and irrevocable. It is subject to no 
supervision or control. . . . The act was designed, as is manifest 

from the purposes avowed in the bill as well as from the express 
terms of the first section, as an unqualified transfer of the exer¬ 
cise of the power to grant corporate privileges from the legislature 
to the courts; and probably was intended to exhaust the power of 
the legislature, in respect, at least, to all such corporations as are 
within the purview of the act. Aud the question is, Can the legislature 
divest itself of this power by a devolution of the power on the judicial 
department, or other substitute? ... It is argued by the counsel 
for the defendants that this 'proviso is not to be regarded as a sub¬ 
stantive grant of power; that the power to grant corporate privi¬ 
leges is properly an original, Inherent legislative function; and that 
the sole design of the proviso was to exclude the interpretation of the 
preceding prohibitory clauses as a denial of the power to the legisla¬ 
ture to exercise this function iu as ample manner as it before existed; 
that the effect of this proviso is to leave this power, and the mode of 
its exercise, to the discretion of the legislature as one of the powers 
incideut to that department of the government, unrestricted by any¬ 
thing iu the Constitution. And from this position the conclusion is 
deduced that it is competent to the legislature to delegate the exercise 
of this power to the courts, or any substitute it may be thought proper 
to select. If the effect of the proviso were that supposed in the argu¬ 
ment, which we do not adpiit, the conclusion is by no means legit¬ 
imate. . . . Here corporations are created only by statute. In this 

state they can not exist otherwise. 

“Iu the theory of our government all sovereignty is inherent in the 
people; the Constitution of this State so expressly declares. . . . 


1 Art. 11, sec. 8. 



262 


TENNESSEE CONSTITUTIONAL LAW. 


Each department is limited within its own appropriate sphere. To each 
has been delegated by the people, whose agents they are, such portion 
of sovereignty as was deemed expedient. On the one hand, neither can 
assume the exercise of any of the powers conferred upon either of the 
others; nor, on the other, can either divest itself by transfer to another 
department or other sub-agent, of any portion of the power expressly 
confided to its own exercise, except in virtue of an explicit authority to 
that effect given by the Constitution itself. It is obvious, then, that the 
construction of the proviso to the seventh section, contended for by the 
defendant’s counsel, does not aid the argument in favor of the authority 
of the legislature to delegate to the courts the power of establishing 
corporations. For whether this power be viewed simply as the exer¬ 
cise of an ordinary function of legislation, upon which the Constitution 
has imposed no restriction, or as the exercise of a power derived by 
express grant from the Constitution; still, in either aspect, it is a power 
properly belonging to the legislative department, and being such, its 
exercise by either of the other departments is prohibited by the consti¬ 
tutional provision above cited. There can be no such thing, under the 
Constitution, as the devolution of power by one department upon 
another unless by special authority of the Constitution itself, and none 
such exists in reference to the power in question. The delegation 
of sovereign power is, in itself, an act of sovereignty, and can only be 
made by the constituent body in whom the original power resides, or by 
its express authority. 

“ It is true the legislative power is, in some respects, the 1 sovereign 
power of the State.’ Its constitutional powers are much more extensive, 
and less capable of being circumscribed within precise limits than those 
of either of the other departments; yet/the Constitution has prescribed 
certain bounds which it can not transcend, and beyond these limits its 
acts are void. If the legislature might do what has been attempted by 
this act under consideration, that system of checks and balances intro- 
duced into our forms of government, both State and Federal, and founded 
on the distribution of powers between the several departments on which 
the safety of our free institutions has ever been found mainly to depend, 
might soon be destroyed. But we construe the proviso to be an abridg¬ 
ment of the power of incorporation. The power is conceded, but the 
purpose for which it may be exercised is also declared, namely, < for the 
public good.’ The legislature may not grant charters of incorporation 
ad libitum for any and every purpose, but only 1 such charters ’ as may 
be -'expedient for the public good.’ The power is not general. It is 
qualified and restricted by the specification of the purpose for which it 
may be exercised. 

“We, therefore, hold that the act under consideration is inconsistent 
with the Constitution and void. First, because it attempts to vest the 


DISTINCT DEPARTMENTS OF GOVERNMENT. 


263 


judicial department with the exercise of a power which belongs exclu¬ 
sively to the legislature; and, in addition, it assumes to transfer what 
the legislature did not possess, unlimited power to grant charters of 
incorporation for all conceivable purposes at the will and pleasure of 
the applicants, wholly irrespective of the ‘public good/ and even con¬ 
trary thereto. And, secondly, because the legislature itself is but an 
agent of the people. Its entire authority is merely a delegation of 
power from the constituent body — the people; its members are the 
chosen aud confidential depositories of the law-making power of the 
government; to whom, in the most emphatic sense, are confided per¬ 
sonally the most important and sacred governmental trusts—trusts 
which, in their very nature and intention, must be exercised in person, 
the idea of a transfer or delegation thereof being in direct opposition 
to the design and ends of their creation.” 35, 650. 1 The State v. Arm¬ 

strong. 1856. 

Law-making Power—Transfer to Judicial Department.— HAWKINS, 
J.: “ We have repeatedly holdeu, that the Act of Congress, declaring 
United States treasury notes a legal tender in the payment of debts, 
was valid and binding. The correctness of these decisions has not been 
questioned in argument, but it is insisted, that, inasmuch as the ques¬ 
tion had not been judicially determined in this State prior to January 
14, 1864, the date of the tender in this case, therefore, an offer to pay 
in these notes, did not constitute a valid tender. This proposition cer¬ 
tainly can not be maintained; so to hold, would be, in effect, to trausfer 
the law-making power from the legislative to the judicial department 
of the government. To hold that acts of the legislature, State or 
national, are inoperative until sanctioned or promulgated by the courts, 
would, in our opinion, be monstrous.” 44, 614. Johnson v. Taylor et 
ah 1867. 

Duty of Supreme Court to Declare Act Unconstitutional.— FREEMAN, J.: 
u It has been earnestly pressed on us that, as a co-ordinate department of 
the government, we should approach with great tenderness a conclusion 
that the legislature had violated the Constitution by any of its enact¬ 
ments. On this question we may make one remark, that whatever is 
constitutionally enacted by the legislature, is binding upon us as a court, 
and we shall firmly and fairly enforce it as the law of the laud. Yet we 
shall with equal firmness, and without any feeling of hesitancy on our 
part, declare any enactment a nullity, and binding on no one, that vio¬ 
lates either the Constitution of the United States or of our own State. 
This high duty is imposed on us by the position which we occupy, aud 
we shall not at any time shrink from its performance, or hesitate for a 
moment in announcing our decisions upon such questions. We know 


1 See same case, art. 11, sec. 9. 



264 


TENNESSEE CONSTITUTIONAL LAW. 


that in these Constitutions are embodied the guaranties for life, liberty 
and property, won from power in all ages past by brave and true men 
—patriots and lovers of freedom — and if sternly and truly enforced by 
an enlightened and fearless judiciary, the liberties of our people are 
safe from all things but the strong hand of military power or despotism, 
backed and sustained by such power. Against power thus supported, 
the judiciary is powerless; but when such power shall grow formidable 
enough in a republic to be put in motion against the liberties of the 
people, the days of constitutional freedom will already have been num¬ 
bered, and an independent judiciary be unknown — a Constitution, with 
its limitations upon power, be but a name, a shadow, the substance and 
reality having passed away.” 50, 704. l Pope v. Phifer et al. 1871. 

Act Requiring Venue to be Changed on Affidavits of Union Men.— 
Nicholson, J., held: “The Act of 1867, ch. 36, sec. 8, requiring in cases 
where the venue had been changed, that it should be charged back on 
certain affidavits of unconditional Union men was unconstitutional, say¬ 
ing: 4 It is clear that the whole purpose of the act was to reverse and 
supersede the orders made in pursuance of existing laws as to ascertain 
cases then pending. It was not simply a special act, for the benefit of 
a few, and not applicable to all suitors alike, and, therefore, in violation 
of art. 1, sec. 8, of the Constitution; but it was an indirect assumption 
of judicial powers, in violation of art. 2, sec. 1, of the same instrument.” 
51, 357. Brown v. Haywood. 1871. 

When State and Federal Constitutions Conflict.— NICHOLSON, J.: 
“There can be no debate at this day as to the proposition that a con¬ 
vention of a people of a State, in making or amending their fundamental 
law, is restricted in its powers only by the limitations of the Federal 
Constitution. We yield a ready assent also to the proposition, that the 
judicial department will not declare an act of the legislative department 
unconstitutional, unless its violation either of the Federal or State Con¬ 
stitution is clear and free from doubt. And we hold it an equally sound 
doctrine, that when the judicial department is called upon to determine 
whether a convention of the State has introduced into its Constitution 
a clause in violation of the Constitution of the United States, the para¬ 
mount duty of sustaining the Federal Constitution should require it to 
be clearly made out, that the State Constitution is in harmony with the 
Federal Constitution.” 52, 358. 2 Yancy v. Yancy. 1877. 

Acts, Judicial and Legislative in Character—Difficult to Distinguish 
— Rule—Suits Pending in Courts—Act Giving Remedies Not Before 
Possessed—Severance in Trial—Act of 1871, Ch. 126, p. 136, Partly 
Unconstitutional. — Nicholson, J.: “It is essential to the maintenance 
of republican government, that the action of the legislative, judicial, 


1 See same case, art. 7, sec. 2. 


2 See same case, schedule, sec. 4. 



DISTINCT DEPARTMENTS OF GOVERNMENT. 


265 


and executive departments should be kept separate and distinct, as it 
is expressly declared it shall be by the Constitution. The most respon¬ 
sible duty devolving upon this court is to see that this injunction of 
the Constitution shall be faithfully observed. We have no right to go 
outside of statutes presented for our examination and adjudication, to 
look into the motives for their enactment. We are to confine ourselves 
to the provisions of the statute itself, and in our decisions we are to 
presume that the legislature not only acted upon consideration of public 
good, but that they have acted within the sphere of their legitimate 
powers. Conceding all this, we are bound, on the other hand, whenever 
in our deliberate judgment these legitimate powers have been tran¬ 
scended, to interpose for the protection and preservation of the Consti¬ 
tution. It was said by Chief Justice Marshall, in Hyman Southard, 10 
Wheat., 46, that ‘the difference between the departments, undoubtedly 
is, that the legislative makes, the executive executes, and the judiciary 
construes the law.’ To adjudicate upon, and protect, the rights and 
interests of individual citizens, and to that end to construe and apply 
the terms, is the peculiar province of the judicial department. It is 
not always an easy task to determine whether an act of the legislature 
is judicial or legislative in its character. Perhaps it may be correctly 
said, that that which distinguishes a judicial from a legislative act is, 
that the one is a determination of what the existing law is in relation 
to some existing thing already done or happened, while the other is a 
pre-determination of what the law shall be for the regulation of all 
future cases falling under its provisions. Const. Law, 91: Bates v. Kim- 
bald, 2 Chip., 77. According to this definition, it is clear that the act in 
question, so far as it is intended to operate prospectively, is a legislative 
act. But as to that portion of it which relates to suits pending when 
it was passed, it is not so clear, whether it is legislative or judicial. 

“The act in questiou is legislative in form, but it operates expressly 
on suits pending in courts. It not only gives to defendants in such suits 
defensive remedies which they did not have before, but it prescribes 
the character of proceedings to be taken in court by defendants to avail 
themselves of their new defensive rights. To obtain a severance — a 
new right conferred—they are to make a motion in court—this motion 
must be acted on by the judge aud a record made, that upon motion of 
defendant, he is entitled to a severance and a separate Trial, the judge 
makes the order nominally, but as he has no discretion and he acts 
under the order of the legislature—it is, therefore, to all iutents and 
purposes, the act of the legislature. Again, alter having secured a 
severance by the process of motion and judgment of severance, the act 
then authorizes him to file his petition, stating that he is a citizen of 
Davidson county, and after swearing to it, he is entitled to have the 
same removed to Davidson county—and the act says, ‘the removal 


266 


TENNESSEE CONSTITUTIONAL LAW. 


shall be ordered.’ Of course this can only be done by a judgment of 
the court—it is upon such judgment of severance and of removal that 
the Circuit court of Davidson is to take jurisdiction. But in such judg¬ 
ment, it is not the judgment of the presiding judge — he is allowed no 
discretion whether the severance or the removal is to be allowed—he 
is commanded to give the judgments, and the exact judgments to be 
given are prescribed by the legislature. We are of opinion that these 
are judicial acts of the legislature. . . . Upon both grounds, there¬ 

fore, first, because the act in question does not furnish plaintiff with a 
remedy substantially the same with that which was in force when the 
suit was commenced; and second, because the act as it relates to pend¬ 
ing suits is judicial in its provisions, we hold that it is unauthorized by 
the Constitution, except as to its prospective provisions.” Turney, J., 
dissented. 58, 689. Mabry v. Baxter. 1872. 

Rights of Parties — Distinctive Duties of Legislature and Courts in 
Regard to Same — Administrators and Executors — Evidence. — T. & S. 
Code, sec. 3813, reads as follows: “ In actions or proceedings by or against 
executors, administrators or guardians, in which judgments may be rend¬ 
ered for or against them, neither party shall be allowed to testify against 
the other as to any transaction with, or statement by, the testator,, 
intestate or ward, unless called to testify thereto by the opposite party, 
or required to testify thereto by the court.” Freeman, J.: “It is evi¬ 
dent that under this last clause it was intended by the legislature to 
give the court the power to call the party, or require of him to testify, 
and that unless so required he should be incompetent under the pre¬ 
vious part of the section quoted. Can this be sustained as a law of the 
land, or does it not confer on our courts legislative and not judicial 
power? We have given some consideration to this question, and we 
are compelled to hold the latter to be the result. The rule of law, the 
general rule which is the law of the land, applicable to all the parties 
named, is, that they are incompetent. Such would be the rule to be 
enforced by the court on objection made to such a witness, and by 
which he could be adjudged incompetent under the law to testify. 
This, then, would be the rule of law; but under this last clause the 
court might say, the law renders you as a party incompetent, and you 
can not be permitted to sustain your right as claimed by your own tes¬ 
timony; it must, therefore fail. But I think this is a proper case where 
you may be required to testify, and the court has the right to relieve 
from the disability imposed by the law; you can, therefore, be a witness, 
because the court thinks it a proper case to allow this to be done. 

“ This is to leave the rights of parties dependent on the will of the 
judge, with no rule prescribed by which he is to be guided in his action, 
nothing by which the party can say it is his right to be heard. In a 
word, in the place of a rule of action prescribed being made the test of 


DISTINCT DEPARTMENTS OF GOVERNMENT. 


267 


the right of the party, the court makes the rule and enforces it, or 
refuses to make it, as he chooses, thus performing a legislative act, 
that is, giving the law to the party in the particular case, not deciding 
upon what the law is. The practical result is, or may be, that a debt 
may be recovered, as in this case, if the court chooses to allow the 
party to prove it; but if not, the right claimed can not be maintained. 
This would leave no rule for the action of all the courts of the State by 
which to be guided, nor the same court in every case, but would make 
the law on which the rights of the parties depend as variable as the 
judgment, whim or caprice, or even the prejudice of the judge might 
dictate. This is not to adjudge what the law is, but to make it, a power 
which can not be conferred by the legislature upon the judiciary. It 
belongs to the law-making department to say what shall be the rule by 
which the rights of parties are to be settled. It is the judicial function 
to ascertain what that rule is and enforce it, or apply it to the decision 
of questions presented. No rule is prescribed in this statute except 
the will of the judge.” 68, 429. Tillman v. Cocke . 1877. 

Duty of the Court in Construing Statutes — MCFARLAND, J. : “The 
duty of the court to pass upon the constitutionality of legislative acts 
is a very grave and responsible one. Every presumption should be 
made in favor of the validity of the laws. The members of the legis¬ 
lature in enacting laws must of necessity judge of their constitutionality 
in the first instance, and the opinion of that body, which is not con¬ 
clusive upon the court, is yet entitled to the respectful consideration 
due from one department of the government to another, and while the 
Constitution is the supreme law, and the courts should not, out of any 
mere feeling of deference to the legislature, hesitate to maintain its 
supremacy, yet legislative acts should not be subjected to a hyper¬ 
critical test. If subject to two reasonable constructions, they should 
be construed so as to give them effect rather than to defeat them. They 
should not be declared void unless they appear to be manifestly so 
according to the plain letter and spirit of the Constitution.” 71, 81. 
1 The State ex rel. Morrell et al. v. Fickle Chairman. 1879. 

Custody of Jury Pending Trial — Discretion of Judge. — TURNEY, J., 
held: 3 “Act of 1887, ch. 158, providing that, in a certain class of criminal 
trials, ‘it shall not be necessary for the presiding judge to place the 
jury in charge of an officer, but the jury may, in the discretion of the 
court , disperse , as in other cases, 1 is unconstitutional, because it substi¬ 
tutes the judge's uncontrolled discretion for the rule of law , and thereby 
confers upon him legislative power.” 87, 304. King v. The State. 1889. 


1 See same case, art. 2, sec. 17. 


9 See M. Si V., G047. 



268 


TENNESSEE CONSTITUTIONAL LAW. 


THE LEGISLATIVE DEPARTMENT. 


Art. 2, Sec. 3. The legislative authority of this State shall 
be vested in the general assembly, which shall consist of a 
senate and house of representatives, both dependent on the 
people [Same as Const. 1834, art. 2, sec. 3; Const. 1796, art. 1, sec. 1.] who 
shall hold their offices for two years from the day of the general 
election. [As provided in Const. 1834, art. 2, sec. 7, and Const. 1796, art. 1, 
sec. 5 post.] 

Art. 2, Sec. 4. An enumeration of the qualified voters and 
an apportionment of the representatives in the general assembly 
shall be made in the year one thousand eight hundred and sev¬ 
enty-one, and within every subsequent term of ten years. 
[Const. 1834, art. 2, sec. 4, was same except as to date of first enumeration, 
which in that instrument was 1841.] 

Art. 2. Sec. 5. The number of representatives shall, at the 
several periods of making the enumeration, be apportioned 
among the several counties or districts, according to the num¬ 
ber of qualified voters in each, and shall not exceed seventy-five 
until the population of the State shall be one million and a half, 
and shall never exceed ninety-nine; provided, that any county 
having two-thirds of the ratio shall be entitled to one member. 
[Same as Const. 1834, art. 2, sec. 5.] 

[Const. 1796, art. 1, sec. 2. “ Within three years after the meeting of the 
general assembly, and within every subsequent term of seven years an 
enumeration of the taxable inhabitants shall be made in such manner as 
shall be directed by law. The number of representatives shall at the sev¬ 
eral periods of making such enumeration be fixed by the legislature, and 
apportioned among the several counties according to the number of taxable 
inhabitants in each, and shall never be less than twenty-two nor greater 
than twenty-six until the number of taxable inhabitants shall be forty 
thousand; and, after that event at such ratio that the whole number of 
representatives shall never exceed forty.”] 

Art. 2, Sec. 6. The number of senators shall, at the several 
periods of making the enumeration, be apportioned among the 
several counties or districts, according to the number of qualified 
electors in each, and shall not exceed one-third the number of 
representatives. In apportioning the senators among the differ¬ 
ent counties the fraction that may be lost by any county or 
counties in the apportionment of members to the house of 
representatives shall be made up to such county or counties in 
the senate as near as may be practicable. When a district is 
composed of two or more counties they shall be adjoining, and 
no county shall be divided in forming a district. [Same as Const. 
1834, art. 2, sec. 6.] 

[Const. 1796, art. 1, sec. 3. “ The number of senators shall, at the several 
periods of making the enumeration before mentioned, be fixed by the legis¬ 
lature, and apportioned among the districts formed as hereinafter directed 
according to the number of taxable inhabitants in each, and shall never be 
less than one-third or more than one-half of the number of representatives.”] 

[Const. 1796, art. 1, sec. 4. “ The senators shall be chosen by districts to 
be formed by the legislature, each district containing such a number of tax¬ 
able inhabitants as shall be entitled to elect not more than three senators. 
When a district shall be composed of two or more counties they shall be 
adjoining, and no counties shall be divided in forming a district.”] 

Art. 2, Sec. 7. The first election for senators and repre¬ 
sentatives shall be held on the second Tuesday in November, 
one thousand eight hundred and seventy; and forever there¬ 
after elections for members of the general assembly shall be 
held once in two years on the first Tuesday after the first Mon¬ 
day in November. Said elections shall terminate the same day. 

[Const. 1834, Art. 2, Sec. 7. “ The first election for senators and representa¬ 
tives shall be held on the first Thursday in August, one thousand eight hun- 


THE LEGISLATIVE DEPARTMENT. 


269 


dred and thirty-five; and forever thereafter elections for members of the 
general assembly 6hall be held once in two years, on the first Thursday in 
August, which said elections shall terminate the same day.”] 

[Const. 1796, Art. 1. Sec. 5. “ The first election for senators and representa¬ 
tives shall commence on the second Thursday in March next, and snail con¬ 
tinue for that and the succeeding day; and the next election shall commence 
on the first Thursday in August, one thousand seven hundred and ninety- 
seven, and shall continue on that and the succeeding day ; and forever after 
elections shall be held once in two years, commencing on the first Thursday 
in August and terminating the succeeding day.”] 


Art. 2, Sec. 8. The first session of the general assembly 
shall commence on the first Monday in October, 1871, at which 
time the term of service of the members shall commence and 
expire on the first Tuesday in November, 1872, at which session 
the governor elected on the second Tuesday in November, 1870, 
shall be inaugurated; and forever thereafter the general assem¬ 
bly shall meet on the first Monday in January next ensuing the 
election, at which session thereof the governor shall be inau¬ 
gurated. 

[Const. 1834, Art. 2, Sec. 8. “ The first session of the general assembly shall 
commence on the first Monday in October, one thousand eight hundred and 
thirty-five; and forever thereafter the general assembly shall meet on the 
first Monday in October next ensuing the election.”] 

[Const. 1796, Art.1, Sec. 6. “ The first section of the general assembly shall 
commence on the last Monday of March next, the second on the third Monday 
of September, one thousand’seven hundred and ninety-seven; aud forever 
after the general assembly shall meet on the third Monday of September 
next ensuing the then election, and at no other period, unless as provided 
for by this Constitution.”] 

Art. 2, Sec. 9. No person shall be a representative unless 
he shall be a citizen of the United States of the age of twenty- 
one years, and shall have been a citizen of this State for three 
years, and a resident in the county he represents one year imme¬ 
diately preceding the election. [Same as Const. 1834, art. 2, sec. 9.] 

[Const. 1796, Art. 1, Sec. 7. ‘‘That no person shall be eligible to a seat in 
the general assembly unless he shall have resided three years in the State and 
one vear in the county immediately preceding the election, and shall possess 
in his own right in the county which he represents not less than two hun¬ 
dred acres of land, and shall have attained the age of twenty-one years.”] 

A rt. 2, Sec. 10. No person shall be a senator unless he shall 
be a citizen of the United States of the age of thirty years, and 
shall have resided three years in this State and one year in the 
county or district immediately preceding the election. No sen¬ 
ator or representative shall, during the time for which he was 
elected, be eligible to any office or place of trust the appoint¬ 
ment to which is vested in the executive or general assembly, 
except to the office of trustee of a literary institution. [Same as 
Const. 1834, art. 2, sec. 10.] 

[Const. 1796, Art. 1, Sec. 24. “No member of the general assembly shall be 
eligible to any office or place of trust except the office of justice of the peace 
or trustee of any literary institution, when the power of appointment to 6uch 
office or place of trust is vested in their own body.”] 

Art. 2, Sec. 11. The senate and house of representatives, 
when assembled, shall each choose a speaker and its other offi¬ 
cers; be judges of the qualifications and elections of its members, 
and sit upon its own adjournments from dtf.y to day. Not less 
than two-thirds of all the members to which each house shall be 
entitled shall constitute a quorum to do business; but a smaller 
number may adjourn from day to day, and may be authorized 
by law to compel the attendance of absent members. [Same as 
Const. 1834, art. 2, sec. 11. Const. 1796, art. 1, sec. 8, was the same, except that 
it provided that " two-thirds of each (house) shall constitute A quorum. ’] 


270 


TENNESSEE CONSTITUTIONAL LAW. 


Art. 2, Sec. 12. Each house may determine the rules of 
its proceedings, punish its members for disorderly behavior, and 
with the concurrence of two-thirds expel a member, but not a 
second time for the same offense; and shall have all other 
powers necessary for a branch of the legislature of a free State. 
[Same as Const, 1834, art. 2, sec. 12; Const. 1796, art. 1, sec. 9.] 

Art. 2, Sec. 13. Senators and representatives shall, in all 
cases except treason, felony, or breach of the peace, be priv¬ 
ileged from arrest during the session of the general assembly, 
and in going to or returning from the same; and for any speech 
or debate in either house they shall not be questioned in any 
other place. [Same as Const. 1834, art 2, sec. 13; Const., 1796, art. 1, sec. 10.] 

Art. 2, Sec. 14. Each house may punish by imprisonment, 
during its session, any person not a member, who shall be guilty 
of disrespect to the house by any disorderly or any contemptuous 
behavior in its presence. [-Same as Const. 1834, art. 2, sec. 14; Const. 1796, 
art. 1, sec. 11.] 


Art. 2, Sec. 15. When vacancies happen in either house 
the governor for the time being shall issue writs of election to 
fill such vacancies. [ Same as Const. 1834, art. 2, sec. 15; Const. 1796, art. 1, 
sec. 12.] 

Art. 2, Sec. 16. Neither house shall, during its session, 
adjourn without the consent of the other for more than three 
days, nor to any other place than that in which the two houses 
shall be sitting, f Same as Const. 1334, art. 2, sec. 16; Const. 1796, art. 1, 
sec. 13.] 


HILLS —TITLE, SUBJECT, REPEAL. 


271 


BILLS —TITLE, SUBJECT, REPEAL. 


Repeals by Implication. 

PAGE. 

Purview” Defined—Intention to Repeal 

Never Presumed—Inconsistent Acts. 272 
When a Statute is Repealed by Implication. 273 

When Repeal will Not be Implied. 60 

Acts Relating to Jurisdiction of Justices... 273 
Subsequent Legislation — Powers of Muni¬ 
cipal Corporations. 273 

This Clause Does Not Apply to Repeals by 
Implication—Reasons—Authorities 
Discussed —Foreign Corporations— 

Insurance Companies. 274 

Assessment Law of 1881—Municipal Taxes 
in Body of Act—No Reference to 

Same in Title. 277 

Act Authorizing Municipal Corporations to 

Levy Tax for School Purposes.277 

Concealed Weapon Act of 1879. 278 

Act Putting Privilege Tax on Jacks. See 
Art. 2, Sec. 28, Cate v. The State. 

Subject and Title. 


This Clause a Limitation Upon Legislative 
Power—Object of it—Rule of Con¬ 
struction . 278 

Evils Intended to be Remedied by it. 279 

Act to Repeal Charters of Municipal Cor¬ 
porations—Rules of Construction.. 280 
More than One Subject in Title—Salaries of 

Public Officers. 282 

Municipal Corporations — Act Providing 
Method for Abolishing—Legislative 

Prerogative. 282 

Two Subjects in One Bill. 283 

Revenue Act of 1879 Constitutional. 283 

Title Need Express Only General Object.... 284 
“Such” Defined—Statute, How Construed 
—Act Punishing Keepers of Gaming 

Houses. 284 

Duplicity of Acts—Barber Law of 1887. 284 

Title of Revenue Law of 1889 . 285 

Title May be Broader than Subject. 285 

Matters Naturally Connected with Act In¬ 
cluded—Mechanics’ Lien Law of 

1889 . 285 

What Title Must Express. See Art. 3, Sec. 

5, Greene v. The State. 


Caption—Title—Substance. 

PAGE. 


Objects of this Clause—Salary of Adjutant 

General. 285 

Small Offense Law—Repeal of Statute. 286 

Caption—What is Sufficient in Act Creating 

Judicial Circuit. 287 


Two Acts Passed to Repeal Another Con¬ 
sidered as Part of Same Legislation. 288 
Act Creating Taxing Districts and Altering 
General Penal Law—Subject and 


Title. 288 

Legislature Must Determine How Broad 

Object of Statute Shall be. 289 

“Receive and Deposit’’—Sale of Cotton- 

Act Regulating.289 

Warehouse Act of 1879 . 289 

Title of Amendatory Act—When Sufficient 
—Depends Upon Title of Original 
Act—Sale of Liquor to Minors, etc. 

—Purview. 289 

Mechanics’ Lien Law of 18S7 —Recital of 

Act Amended—“ Revised Code”... 290 


Caption of Amendatory Statutes—Particu¬ 


lar Character of Amendment . 292 

Acts Relating to Consolidation of Railway 

Corporations. 292 

Repeal of Act Reciting in Caption Title 

Only of Old Act, Valid. 293 

When two Statutes Repeal Another—Re¬ 
peal of Repealing Statute—Effect 

on Statute Repealed. 293 

Repeal by Implication—Act of 1891, Ch. 101, 

Valid. 294 

Amendatory Statute—Reciting Subject of 

Statute Amended. 294 

Amendatory Statute—Recitals in —“Code 

of Tennessee”. 294 


Reaffirmauce of All Doctrines Previously 

Announced Under this Section.... 295 
Passing Bill in Lieu of Original Bill—Re¬ 
port of Committee—Construction of. 

See Art. 2, Sec. 18, Nelson v. Haywood. 
County. 


Art. 2, Sec. 17. (Bills may originate in either house, but 
may be amended, altered, or rejected by the other.) No bill 
shall become a law which embraces more than one subject, that 
subject to be expressed in the title. All acts which repeal, revive, 
or amend former laws, shall recite in their caption, or otherwise, 
the title or substance of the law repealed, revived, or amended. 1 
[Const. 1834, art. 2, sec. 17, and Const. 1796, art. 1, sec. 14, contained only the 
clause in parenthesis.] 

1 For indirect or unimportant reference to this section, see Third Tenn. Chc’y Rep., 612; 22 , 
18; 62 , 147; 71 . 57, 558 ; 74 , 221 ; 78 . 484; 80,397; 81 , 726; 84 , 122, 407 ; 89 , 542; 91 , 421, 511; 
92 , 607 ; 93 , 571, 678 ; 94 , 692. 

The office of register of the mountain district continues to exist. See 80 , 401, construing 
M. & V., 513 et seq. 



































272 


TENNESSEE CONSTITUTIONAL LAW. 


Repeals by Implication . 

Meaning of Purview—Intention to Repeal Never Presumed — Incon¬ 
sistent Acts.—O verton, J.: “It is admitted that the Act of 1789 
expressly repeals the ninth section of the Act of 1715. The repealing 
clause is relied on, which is in these words: ‘ That all laws and parts of 
laws, that come within the purview and meaning of this act, are hereby 
declared void and of no effect/ There are two ways of repealing acts, 
one by implication and the other by express words. It is believed by 
the court that the Act of 1789 can not be considered as an express 
repeal. It is not pretended that it repeals the ninth section in direct 
language, but that the expression ‘all laws and parts of laws coming 
within the purview and meaning/ repeals it. How would this repealing 
clause stand without the word purview? Simply thus: That all such 
parts of its provisions as came within the meaning of the Act of 1789 
should be repealed. Now, it can not be perceived that the addition of 
the word purview makes any difference in the meaning of the legis¬ 
lature. Lord Coke informs us that the purview is all that part of an 
act which lies between the caption and the repealing clause. Thus, it 
seems, that it means nothing more than the body of the act. But what 
is the meaning of the body or purview of the act? recurs upon us. And 
turn this repealing clause as you may, the same point presents itself. 
All such parts of former acts as were within the purview or body of 
this act are repealed. The word purview, in this place, is a mere exple¬ 
tive. Either that, or the word meaning, must be useless. And at last, 
the intention of the legislature must be collected as if there were no 
such repealing clause. It does not say the ninth section must be 
repealed; and whether it is or not, must be ascertained in the same 
manner as if this repealing clause was not here. It is very common for 
the legislature to say, at the end of its acts, that ‘all such parts of 
former acts as come within the purview of this act shall be repealed/ 
How are courts to ascertain what comes within the meauiug of an act, 
but by applying the common rules of construction, which are nothing 
but the dictates of common sense? It is certainly incorrect to suppose 
that a subsequent statute, of course, repeals a previous one on the same 
subject. A disposition entirely adverse to this proposition is always 
entertained by the expounders of the law. A legislative intention to 
repeal is never presumed, nor are implied repeals encouraged. The pro¬ 
visions of a subsequent act must be inconsistent with those of a prior 
statute, else it can not be said that the legislature intended a repeal. If 
the provisions of a subsequent statute are commensurate with the evils 
redressed by the former, it operates as an entire repeal; otherwise, it 
is a repeal pro tanto . In this view of the subject, it is essential that not 
only every part of the same act should be taken into consideration, but 
all statutes made on the same subject, in order that it may be seen how 


BILLS—TITLE, SUBJECT, REPEAL. 


273 


far one statute repeals another, as well as to ascertain the meaning of 
the legislature, by comparing different parts of the same and other acts 
on the subject together. Lord Coke, in 11 Rep., 63, 64, lays down the 
rule to be, ‘that if a subsequent act can be reconciled with a former 
one, it shall not be a repeal/ Further information respecting the con¬ 
struction of statutes may be collected from a variety of books with 
which the practitioners in this court must be conversant.” 3, 338. 
Smith v. Hickman’s Heirs. 1813. 

When Statute is Repealed by Implication.— REESE, J.: “Statutes are 
repealed or changed, in whole or in part, by subsequent statutes, when 
the latter referring to them in terms declares the repeal or change, and 
the extent of it; or, when the provisions of the subsequent statutes, in 
their operation and effect, are inconsistent with, or repugnant to, the 
unchanged or unmodified operation and effect of such former statutes. 
In this latter case such former statutes are repealed, or changed or 
modified by the necessary implication of an express intention on the 
part of the legislature to compass that end, to the extent, and in those 
particulars only, in which such inconsistencies or repugnancy exist; and 
this, even without any reference to such former statutes, or any express 
declaration to that purpose.” 23, 72. Browning v. Jones. 1843. 

Jurisdiction of Justices — Replevin. — WRIGHT, J.: “This is a Suit by 
warrant in replevin before a justice of the peace, issued the 10th of 
October, 1856. And the only question is, whether the justice had juris¬ 
diction? And we think he had. By the Act of 1846, ch. 65, the Circuit 
courts alone had jurisdiction of all suits in replevin, however trivial 
the cause of action. This defect was soon perceived by the legislature, 
and remedied by the *Act of 1851, ch. 32, and jurisdiction conferred on 
justices of the peace in actions of replevin where the amount did not 
exceed $50. This act is not repealed by the Act of 1854, ch. 60, and 
the jurisdiction of the justice of the peace remains undisturbed. The 
only object of this last mentioned act was to so amend the Act of 1846 
as to authorize the action of replevin to be instituted in the courts of 
the county in which the goods and chattels sued for ‘may be found/ It 
had reference only to the Circuit courts, and the jurisdiction of justices 
of the peace was not in the least affected by it. The Acts of 1851 and 
1854 may well stand together, and implied repeals are not to be encour¬ 
aged. 2 Meigs Dig., 972-3; Cate v. The State” 38, 114. Hockaday 
v. Wilson. 1858. 

Powers of Municipal Corporation — Repeal of by Implication — Sub¬ 
sequent Legislation.—N icholson, J.: “The repeal, or revocation, or 
modification of the powers of a municipal corporation may be effected, 

»T. Si 8., 3375 et seq. ; M. & V., 4111 et seq. 

18 



274 


TENNESSEE CONSTITUTIONAL LAW. 


either expressly or by necessary implication, by subsequent legislation. 
Hence, if the Act of 28th February, 1870, incorporating the Memphis 
Water Company with exclusive powers to erect waterworks in Memphis, 
and supply the city and its inhabitants with water, was a valid and con¬ 
stitutional exercise of legislative power, it operated, by necessary impli¬ 
cation, as a revocation of the power of the city corporation to erect 
waterworks for the same purposes.” 52 , 528. 'City of Memphis v. 
Memphis Water Co. 1871. 

More About the Objects of this Provision—Does Not Apply to Repeals 
by Implication — Reasons — Authorities Discussed.— The Act of 1875, 
ch. 109, provided for the payment to the State of a prescribed tax by 
foreign insurance companies for the privilege of doing business in this 
State, “ which shall be in lieu of all other taxes.” By the Act of 1879, 
ch. 84, sec. 7, sub-sec. 53, an additional tax for the benefit of the taxing 
district was laid on the same business. Cooper, J.: “The argument on 
behalf of the companies is that the Act of 1879, to be operative in the 
levying of additional taxes on them, must be held to repeal the words, 
1 which shall be in lieu of all other taxes 5 of the Act of 1875, and is to 
that extent, unconstitutional, because it neither recites in its caption or 
otherwise the title or substance of the law repealed. The words relied 
on, as we have seen, do not amount to a contract, nor limit the power 
of subsequent legislatures. They should be read as if the clause was 
written thus: 1 Which shall be in lieu of all other taxes until the legis¬ 
lature imposes other taxes. 5 For that is what in legal effect they mean. 
In this view, nothing was repealed by the subsequent legislation, the 
clause in controversy being mere surplusage and both acts remaining 
in full force. If this construction be inadmissible, the second act is 
incompatible with the first, and does repeal it by necessary implication. 
The question in this view is squarely raised, whether implied repeals 
are within the purview of the constitutional provision. It has not, 
heretofore, been deliberately considered and determined by the court, 
although there have been expressions of opinion on the point in cases 
in which its decision was, perhaps, not absolutely demanded. The State 
ex rel. v. Gaines, McGee v. The State, The State ex rel. v. McConnell. 
The present case, although not absolutely requiring its solution, has 
been selected in connection with another case in which the question is 
directly raised, for its discussion and determination. 

“Strictly speaking, a new statute does not repeal an old statute, 
however inconsistent with it. It is a mere form of expressing the result 
to say that the one repeals the other by implication. The prior act is 
not repealed, but rendered inoperative. And this'is made plain by the 
fact that a direct repeal of the latter act, without any reference to the 


1 See same case, art. 1, sec. 20, p. 185 ; art. 1, sec. 22, p. 229; art. 11, sec. 8. 



BILLS—TITLE, SUBJECT, REPEAL. 


275 


former, will, by a rule of the common law, give efficacy to the former. 
It was precisely because the old act never was repealed that it thereby 
became operative. It is a convenient, though inaccurate use of lan¬ 
guage to say that the new law repeals the old, and that the repeal of 
the new law revives the old. More properly the new act is an obstacle 
to the operation of the old act, which obstacle is removed by its repeal. 
It may well be doubted, therefore, whether a repeal by implication 
falls within the letter of the Constitution. It has usually been consid¬ 
ered as if it did. The question, in this view, is not one altogether of 
first impression. Several of the State Constitutions contain similar pro¬ 
visions; that is, provisions designed for the same purpose, some of 
them couched in stronger language. A common provision in many of 
these Constitutions is thus worded: ‘No act shall ever be revived or 
amended by mere reference to its title, but the act revived or section 
amended shall be set forth or published at full length/ Cooley Const. 
Lim., p. 151, n. 1. ‘It has been uniformly held/ says Judge Cooley, 
1 that statutes which amend others by implication are not within these 
constitutional provisions, and that it is not necessary that they even 
refer to the acts or sections which by implication they amend/ He 
cites Spencer v. The State, 5 Ind., 41; Branham v. Lang, 10 Iud., 481; 
People v. Mahoney, 13 Mich., 581; Lehman v. McBride, 15 Ohio, N. S., 593. 

“This conclusion has been reached partly from a consideration of 
the purpose for which the constitutional provision was adopted, and 
partly from the argument ah inconvenienti that a contrary decision 
would render legislation well nigh impossible. The first of these reasons, 
every judge knows, is one which uniformly influences the judicial con¬ 
struction of statutes, where the meaning is at all doubtful. The evil 
intended to be remedied is a most potent factor in ascertaining the 
legislative will. It should have even greater weight in construiug the 
work of a constitutional convention. For the language of a Constitu¬ 
tion must necessarily be very general, admitting often of a broader sense 
than was meant to be conveyed. Error in the former case is, moreover, 
much less injurious and more easily corrected than the latter. And in 
either case, whenever the statute or constitutional provision undertakes 
to limit the power of the political department, every intendment should 
be in favor of that department. A doubt, as has often been said by the 
courts in relation to the great prerogative of legislation, should inure 
to the benefit of the government. The evil which led to the adoption 
of the constitutional provisions under consideration was, undoubtedly, 
the passing of laws without the members of the legislature being fully 
advised of what they were doing. ‘The mischief designed to be rem¬ 
edied/ says Judge Cooley, ‘ was the enactment of amendatory statutes 
in terms so bliud that legislators themselves were sometimes deceived 
in regard to their effect, aud the public, from the difficulty of making 


276 


TENNESSEE CONSTITUTIONAL LAW. 


the necessary examination and comparison, failed to become apprised 
of the change made in the laws/ People v. Mahoney, 13 Mich., 455. 
The same is equally true of repealing statutes which fail to call the 
attention of the legislature to the substance of the act repealed. The 
evil, it will be noticed, only applies to statutes which purport to repeal, 
revive or amend. No such evil can follow direct and positive legis¬ 
lation, which, precisely because it is positive, repeals by implication 
previous legislation. For, in such case, the legislature of course know 
what they propose to pass into a law, and intend that it shall be the 
law, whatever may have been previously enacted. ‘The very fact/ says 
the Supreme court of Maryland, ‘of establishing a particular rule of 
conduct for the public presupposes an intention on the part of the 
legislature that a contrary rule to that which previously existed should 
prevail, and therefore the enactment of one law is as much a repeal of 
all inconsistent laws as if the inconsistent laws had been repealed by 
express words/ 7 Md., 151, 159. Not the least possible danger can 
arise from a repeal by implication. For such a repeal is not favored 
nor admissible unless the positive provisions of the new law are utterly 
irreconcilable with the old law, thus unmistakably showing to the satis¬ 
faction of the judiciary that the repeal was intended. 

“ On the other hand, the evils of a different construction of the con¬ 
stitutional provision are obvious and striking. It would result in turn¬ 
ing what was intended to prevent unadvised legislation into a barrier to 
all legislation, and a certain snare to the legislator. ‘ It would render/ 
says the Supreme court of Maryland, ‘many wholesome laws wholly 
inoperative because of the inability or neglect of members to search 
thoroughly the statute books for laws which might be inconsistent or 
repugnant, a work of so great difficulty as to amount almost to an 
impossibility/ 7 Md., 159. The difficulty of determining the effect of a 
new statute of a general nature on the pre-existing system is notoriously 
great. Time alone, and the practical application of the new law to the 
varying phases of actual cases can show the ultimate results. To require 
from our legislators in advance what the wisest lawyer or judge would 
find a hopeless task upon serious study, would indeed go far to render 
legislation impossible. Nor would this be the greatest evil. It would 
often happen, after a new statute had been acted on and treated as valid 
for years, that some old statutory provision would be discovered which 
would annul it ah initio. That the constitutional provision under con¬ 
sideration does not apply to repeals by implication seems to be sustained 
by reason, as it certainly is by 'authority.” Freeman, J., dissented. 
72, 647. Home Insurance Co. v. Taxing District. 1880. 


1 See 72 , 353. 



BILLS —TITLE, SUBJECT, REPEAL. 


277 


Assessment Law of 1881—Municipal Taxes in Body of Act — No 
Reference to Same in Title — Comments on Doctrine of Implied Repeals.— 
Freeman, J., held in this case that the Act of the General Assembly, 
1881, entitled “An Act to provide more just and equitable laws for the 
assessment and collection of revenue for State and county purposes, 
and to repeal all laws now in force whereby revenue is collected for the 
assessment of real estate, personal property, privileges and polls,” was 
void, because it provided for the collection of municipal taxes in the 
body of the act, while no reference was made to same in title. . . . 
In delivering this opinion he said: “The doctrine of implied repeal 
under this section, after much contest, has been established as the view 
of the majority of this court, and to that the writer of this opinion 
yields obedience. It stands on the ground that where there is an 
affirmative enactment laying down definitely the new rule that the evil 
of want of notice of the law repealed by the legislature and the public 
does not arise, and therefore a liberal construction of the clause may 
be permitted, and the implied repeal held not forbidden by the Consti¬ 
tution. But while we have adopted a most liberal construction of the 
clause of the Constitution (one that the writer of this opinion thinks 
went beyond the intent and meaning of the language used), yet we 
have always felt bound to hold that the article did fix limits upon legis¬ 
lative action, and when these limits were passed, it is an imperative 
duty to declare the act unconstitutional and a nullity.” Cooper, J., 
dissented. 80, 180. Mayor etc. of Knoxville v. Lewis. 1883. 

Jurisdiction of County Court — Implied Repeals Not Favored.— 
Freeman, J. : “While it is now the settled doctrine of this court that 
implied repeals are constitutional, still they are not favored, and where 
the conflict between a later statute and a former one is not clear, and a 
necessary implication, such repeal will not be held. After careful con¬ 
sideration we do not think the Act of 1881, section 4, repeals section 1 
1620 of the Code. The jurisdiction of the county court may well 
remain, and both statutes have full effect.” 81, 075. Willaford v. 
Pickle. 1884. 

Municipal Corporations—Act Authorizing Them to Levy Tax for 
School Purposes.— Cooper, J.: “The legislature, by the Act of 1872, ch. 
12, authorized all municipal corporations to establish a system of public 
schools and levy a tax in support thereof, upon the consent of a two- 
thirds of the qualified voters of the municipality given at an election 
held for the purpose. It is now insisted that the amendatory "Act of 
1885 repeals the Act of 1872 by “necessary implication,” and is, there¬ 
fore, void, because it violates the Constitution by failing to refer to the 


‘ Acts 1881, ch. 38, sec. 4. M. & V., 2127. 

• Act 1885, ch. 37; M. & V., 1652, 1657; Shan. Sup. to M. & V., p. 139. 



278 


TENNESSEE CONSTITUTIONAL LAW. 


act repealed. But if the fact were as claimed, we have settled that the 
section of the Constitution referred to has no application to statutes 
which repeal by implication.” 83, 039. 1 Ballentine v. Mayor etc. of 

PulasM. 1885. 

Carrying Weapons—Journey Feature—Repeal—Justices of the Peace 
—Jurisdiction of.— Folkes, J., held: “Since the Act of 1879, ch. 186, no 
person can lawfully carry any of the weapons therein prohibited, while 
on a journey out of his county or the State. That act repeals the jour¬ 
ney feature of the former laws on the subject of carrying arms. . . . 

A statute inconsistent with, and embracing the entire subject matter of, 
a former statute repeals it, either with or without a repealing clause. 

. . . A statute which operates to repeal a former statute, by impli¬ 

cation merely, does not fall within this section.” He said also: “We 
have practically held at the present term, in the case of Foust v. The 
State, that the * 2 Act of 1879, now under consideration, has repealed by 
implication the acts giving justices of the peace jurisdiction over con¬ 
cealed weapon cases under the ‘small offense’ laws.” 85,495. Poe v. 
The State. 1886. 


Subject and Title. 

This Section an Unconditional Limitation Upon Legislative Power 
—Not Directory — Object of the Convention in Adopting It—Rule of 
Construction. — Nicholson, J.: “The particular portion of this section 
on which the question, in the present case, is raised, is the fol¬ 
lowing: “No bill shall become a law which embraces more than one 
subject; that subject to be expressed in the title. Similar provisions 
have been introduced, of late years, into many of the State Constitu¬ 
tions, and frequent occasions have arisen for their construction by the 
courts. In several States the courts have construed the provisions to 
be only directory to the legislatures, and held that their acts are not 
invalid, although not conforming to the directory requirements of their 
Constitution. But the courts of most of the States have construed the 
provisions to be mandatory or imperative, and, therefore, that the acts 
not passed in conformity therewith, are invalid and void. The language 
adopted in our Constitution differs, in some respects, from that used in 
other States. ‘No bill shall become a law which embraces more than 
one subject.’ This is a direct, positive and imperative limitation upon 
the power of the legislature. It matters not that a bill has passed 
through three readings in each house, on three different days, and has 
received the approval of the Governor; still it is not a law of the State 
if it embraces more than one subject. It is, therefore, a plain, absolute 

*See same case, art. 1, sec. 8, p. 62; art. 2, sec. 2, p. 252; art. 2, sec. 28; art. 2, sec. 29; art. 11, 
sec. 8; art. 11, sec. 12. 

2 M. & V., 5533; T. & S., 4759a; 85, 343. 



BILLS—TITLE, SUBJECT, REPEAL. 


279 


and unconditional limitation upon legislative power. But while it is 
conceded that a bill which embraces more subjects than one can not 
become a law, because of the imperative or mandatory character of the 
language, yet it is suggested that the remaining portion of the provision, 
to wit: ‘that subject to be expressed in the title/ was not intended to 
be mandatory, but only directory; and, therefore, that a bill may 
become a law, although the subject of the bill may not be expressed in 
the title. 

“ In the present case we do not deem it necessary to express an opinion 
as to the question, whether any provision of a Constitution can be prop¬ 
erly treated otherwise than as mandatory. The essential nature and 
object of constitutional law being restrictive upon the powers of the 
several departments of government, it is difficult to comprehend how 
its provisions can be regarded as merely directory. But, however this 
may be as to other provisions of the Constitution, we can see no reason 
for placing a different construction on the language used in the latter 
portion of the provision under consideration from that placed on the 
first portion. The language, ‘that subject to be expressed in the title/ 
can not merely be regarded as directory. The command is positive 
that no law shall embrace more than one subject, and is equally positive 
that that subject is to be, or shall be expressed in the title. To consti¬ 
tute a valid law under this provision, the bill must not embrace one 
subject alone, but that subject must be embraced in the title. 

“Plausible reasons might be given to show that it was not essential 
to the object which the Convention sought to accomplish that the sub¬ 
ject of legislation should be imperatively indicated in the titles of bills, 
but where there is no real ambiguity in the language employed, we 
have no right to fritter away the obvious import of that language by 
construction. The convention evidently designed to cut up by the roots 
not only the pernicious system of legislation, which embraced in one 
act incongruous and independent subjects, but also the evil practice of 
giving titles to acts which conveyed no real information as to the objects 
embraced in its provisions. To accomplish both purposes the conven¬ 
tion deemed it wise to withhold from the legislature any power to enact 
a law which either embraced more than one subject, or which failed to 
express the fact in its title. . . . The true rule of the construction, 

as fully established by the authorities, is, that any provision of the act, 
directly or indirectly relating to the subject expressed in the title, and 
having a natural connection thereto, and not foreign thereto, should be 
held to be embraced in it.” 55, 517. Cannon v. Mathes. 1872. 

Evils Intended to be Remedied by this Section — Rules of Construc¬ 
tion.— McFarland, J.: “The evil intended to be remedied was to pre¬ 
vent laws upon one subject being tacked on to a bill upon a wholly 
different subject, and in this way sometimes elude the attentiou of the 


280 


TENNESSEE CONSTITUTIONAL LAW. 


legislature, and pass without sufficient consideration, aud when passed 
often remain for some time undiscovered, by reason that the title of the 
act fails to call attention to it. This provision of the Constitution is a 
salutary one, and should be rigidly enforced according to its true spirit 
and intent, but not so as to embarrass the necessary legislation. Legis¬ 
lation upon different subjects, and upon subjects not indicated in the 
title of the act, are forbidden, but it was not intended that every pro¬ 
vision or feature of the law should constitute a different subject so as 
to make it necessary to pass separate acts in regard to each j nor was 
it intended that the title should express fully everything contained in 
the act.” 68, 586. 'The State v. Lassater. 1877. 

Act to Repeal Charters of Municipal Corporations — Provision Touch¬ 
ing Property — General Rules of Construction. — COOPER, J.: “The decis¬ 
ion of this case turns upon the constitutionality of the act of the 
legislature repealing the charter of the city of Memphis (1879, ch. 10), 
the Act to establish taxing districts (1879, ch. 11), and the act amend¬ 
atory thereof (1879, ch. 84.) The first objection urged against them is, 
that they violate the following prohibition of the Constitution: ‘No bill 
shall become a law which embraces more than one subject, that subject 
to be expressed in the title.’ The objection is, that each of the first 
two acts embraces more than one subject. The title of chapter 10 is: 
‘An Act to repeal the charter of certain municipal corporations, and to 
remand the territory and inhabitants thereof to the government of the 
State.’ The objection seems to be that while the subject of the title 
and of the act is the repeal of certain municipal charters, the fourth 
section of the act provides that the public buildings, squares, etc., ‘and 
all other property, real and personal, hitherto used by such corpora¬ 
tions for municipal purposes, are hereby transferred to the custody and 
control of the State, to remain public property as it has always been, 
for the uses to which said property has been hitherto applied.’ The 
title of chapter 11 is: ‘A bill to establish taxing districts in this State, 
and to provide the means of local government for the same.’ The objec¬ 
tion is, that while the subject of the act is that of the title, it embraces 
many details, such as the conferring judicial powers on the executive 
officers of the corporation, and making certain official delinquencies 
felonies, which, while germane to the object of the act, are, it is said, 
independent subjects. Under a similar provision in the Constitution of 
other States to the one quoted, it has been uniformly held that only the 
general or ultimate object of the act need be stated in the title, and 
not the details by which that object is to be obtained. Dillon’s Mun. 
Cor., Sec. 28, and cases cited. ‘There has been a general disposition,’ 
says Mr. Cooley, citing a large number of cases, ‘ to construe the consti- 


‘See same case, art. 1, sec. 16, p. 112. 



BILLS—TITLE, SUBJECT, REPEAL. 


281 


tutioual provisions liberally rather than to embarrass legislation by a 
construction whose strictness is unnecessary to the accomplishment of 
the beneficial purposes for which it has been adopted/ Const. Lim., 
146. And Nicholson, C. J., after stating and considering those purposes, 
announced as the conclusion of this court, that‘ any provision of an 
act directly or indirectly relating to the subject expressed in the title, 
having a natural connection therewith, and not foreign thereto, should 
be held to be embraced in it. This court, thereupon, held that a pro¬ 
vision for a tax on privileges was properly included in an act entitled 
‘An Act to fix the State tax on property/ Cannon v. Mathes. Upon like 
grounds a provision for the organization and sitting of courts in new 
counties was held to be properly embraced in an act entitled ‘ An Act 
to authorize the formation of new counties and to change county bound¬ 
aries/ Brandon v. The State, 16 Ind., 197. And an act entitled ‘An Act 
for revising and consolidating the laws incorporating the city of Dubuque, 
and to establish a city court therein/ was held to express only one 
object by its title, which was the revising and consolidating the laws 
incorporating the city, the court adding that the city court not being 
an unusual tribunal in such a municipality, might be provided by the 
act, whether mentioned in the title or not. Davis v. Woolreugh, 9 Iowa, 
104. ‘We think it plain/ says Folger, J., ‘that an act creating a muni¬ 
cipal corporation, and giving it the necessary legislation, taxing, judicial 
and police powers embraces but one subject/ Harris v. People, 50 N. Y., 
601. And see to the same effect Village of Gloversville v Howell, 
70 N. Y., 290, which was a suit for the recovery of penalties under 
‘ An Act to reorganize the village of Gloversville/ 

“The rule of construction upon which these decisions are based, is so 
obviously the dictate of good sense, that it has been adopted with entire 
unanimity by courts and text writers. And under the peculiar wording 
of our Constitution, which has been held to render the act void in toto 
where more than one subject is embraced in it, although only one is 
expressed in the title, a strict construction, as to the correctness of 
which I entertain grave doubts, it becomes very important to adhere to 
the suggestions of Judge Cooley, which are quoted with approbation by 
Chief Justice Nicholson, in 8 Heis., 519: ‘The generality of a title/ says 
the eminent judge and writer, ‘is no objection to it so long as it is not 
made a cover to legislation incongruous in itself, and which by no fair 
intendment can be considered as having a necessary or proper connec¬ 
tion. The legislature must determined for itself how broad and com¬ 
prehensive shall be the object of a statute, and how much particularity 
shall be employed in the title in defining it/ Tested by these rules, it 
is clear that the provision touching the property of the corporation 
whose charter was repealed in the first of the acts under consideration 
was not an independent subject, and was pfoperly embraced in the act. 


282 


TENNESSEE CONSTITUTIONAL LAW. 


For, it was not so much the enactment of a positive provision as the 
enunciation of a legal result of the repeal. Dill. Mun. Cor., sec. 30; 
Terrett v. Taylor, 9 Cranch, 43; and see what Cooley, J., says on this 
point in People v. Hurlburt, 24 Mich., 44. It related indirectly certainly, 
and perhaps we might say directly, to the subject of the act. And the 
same may be said, with even more certainty, of the details of the second 
act, all of which are ‘directly or indirectly’ connected with the local 
government, the creation of which was the subject thereof. The Con¬ 
stitution, it may be added, provides that ‘the legislature may also vest 
such jurisdiction in corporation courts as may be deemed necessaryJ 
Art. 6, sec. 1. And judicial duties, it is well settled, may be added to 
those proper to the office of mayor, recorder, or other executive of a 
municipal corporation. Dill. Mun. Cor., sec. 147; Trigally v. Memphis.” 
Judges Freeman and Turney dissented. 70, 427. l Luehrman v. Tax¬ 
ing District of Shelby Co. 1879. 

Salaries of Public Officers—More than One Subject — Only One 
Expressed in Title.—F reeman, J., held: “The Act of the Legislature of 
1879, entitled ‘An Act to regulate and equalize the salaries of certain 
public officers,’ is unconstitutional, because repugnant” to this provision. 
. . . “If an act contains more than one subject, and only one subject 

is expressed in the title, the whole act is a nullity.” Cooper, J., dis¬ 
sented. 72, 1. The State ex rel. Knight Trustee v. McCann Clerk. 1879. 

Municipal Corporations—Act Providing Method for Abolishing and 
Amending Charter—Legislative Prerogative. — COOPER, J.: “The Act of 
1881, ch. 122, is entitled: ‘An Act prescribing a mode by which munici¬ 
pal corporations may surrender or abolish their charters.’ The first six 
sections of the act are directed to this object. But the next three sec¬ 
tions undertake to provide a mode by which any municipal corporation 
may amend its charter. The title and object of the first part of the act 
is, therefore, the abolishment of municipal charters, while the latter 
part of the act provides for a change or addition to their powers, and 
the continuance, instead of the extinction of their existence. No two 
objects could be more inconsistent, and the latter object is not expressed 
in the title. The act is, therefore, . . . unconstitutional and void. 

“It is very true the latter sections of this statute are of the charac¬ 
ter of that ‘extraordinary act,’ as Judge McKinney styled it, which was 
passed upon in the State v. Armstrong. They undertake to authorize 
the board of mayor and aldermen, or other legislative council of the 
corporation, to prepare amendments of the municipal charter in the 
manner in which by-laws are adopted, and to submit the same to a vote 
of the qualified voters of the corporation, and if a majority vote there¬ 
for, to cause the same to be registered, whereupon, says the act, ‘the 


1 See same case, art. 2, sec. 29; art. 7, sec. 4; art. 11, sec. 8. 



BILLS—TITLE, SUBJECT, REPEAL. 


283 


amendments shall become a part of the charter/ The legislature seems 
willing to renounce its inherent prerogative to prescribe the powers of 
municipal corporations, and delegate the authority to the people of the 
locality. It would be somewhat difficult to sustain the constitutionality 
of these provisions. Chadwell ex parte. But it may be equally difficult 
to sustain the constitutionality of the other provisions. And the entire 
act falls clearly within the decision in the McCann case.” 77, 379. 
Murphy v. The State. 1882. 

Two Subjects in One Bill.—S need, J., held: “The *Act of March 23, 
1875, ch. 94, par. 12, which provides a penalty for failure to comply 
with contracts made by persons for the delivery of produce, merchan¬ 
dise or property to parties advancing on the same, is unconstitutional, 
because the bill embraces more than one subject.” Tenn. Leg. Rep., 
vol. 1, p. 371. Gossett v. The State. 

Revenue Act of 1879 Constitutional. — Question: Was the Act of 
1879 an amendment to the Assessment Act of 1877, and was the Act of 
1879 in conflict with this section of the Constitution? After reviewing 
all the decisions on this subject in the State, T. M. Jones, Sp. J., said: 
“Let us now test the act in question by the principles laid down in these 
decisions. The general subject of the act is revenue. It is entitled ‘An Act 
for the more rigid collection of the revenue/ and each and every section 
in the act has direct reference to the subject of revenue. It is true the 
act makes all collectors assessors to assess all property ‘which by 
mistake of law or facts has not been assessed, and proceed to collect 
the same/ and while it is true, as argued by the counsel, that ‘collection 
is a process beginning after assessment/ yet it is equally true that each 
has reference to the same subject, and the oue is the means provided 
by the act for the attainment of the end expressed in the title, to wit: 
‘the more rigid collection of the revenue/ as it is evident that no taxes 
could be collected until this assessment was made. The provision in 
the act that suit may be brought for the recovery of these taxes by the 
issuance of a warrant by a justice of the peace in the name of the 
State, county or municipal corporations jointly or separately, and giving 
justices of the peace jurisdiction ‘to try all such cases, no matter what 
the amount/ is liable to a more serious objection, but we do not deem 
it necessary to pass upon this provision of the statute, as this proceed¬ 
ing commenced by a petition for a mandamus in the Circuit court. 

“ If some of the provisions of the act are unconstitutional, because 
not indicated by the title, or for any other cause, yet it is an universal 
rule that so much of the act as is not in conflict with the Constitution 
must be sustained. Cooley on Constitutional Limitations, 148. Nor do 
we regard the act before us as an amendment to the act passed on the 9th 


See Acte 1879 p. 277. 



284 


TENNESSEE CONSTITUTIONAL LAW. 


of March, 1877. That act is entitled ‘An Act to amend all laws for the 
assessment of property/ The Act of 1879 is ‘for the more rigid collec¬ 
tion of the revenue/ It does not repeal, or change, or modify any 
provisions of the Act of 1877. Its object is ‘to assess all property 
which by mistake of law or facts has not been assessed’ and collect the 
taxes which may be assessed upon the same.” 76, 595. l The State ex 
rel. Gaines v. Whitworth Trustee. 1881. 

Title Need Only Express General Object. — COOPER, J.: “The Acts ot 
1881, ch. 87, and 1883, ch. 110, ... in controversy are not in con¬ 

flict with this section, for each act contains only one subject which is 
expressed in the title. The subject of the first act is to amend the 
charter of Fayetteville by changing the time for holding the election of 
aldermen, and this subject is expressed in the title. The subject of the 
second act is to amend the charter and the amendatory act, and this is 
also expressed in the title. The generality of the title, all the cases 
agree, is no objection. The title need only express the general object 
without specifying the details.” 80, 253. *The State v. Wilson. 1883. 

“Such”—“Etc.”—Meaning 1 of—Act Punishing- Keepers of Gaming 
Houses — Doubt in Relation to Constitutionality of Statute Should be 
Resolved in Favor of the Act. — TURNEY, J., held: “The * 3 Act of 1883, 
ch. 230, embraces but one subject and is constitutional. ‘Etc/ at the 
end and part of the title of an act means ‘and others’ and ‘and so forth,’ 
and is not to be rejected. ‘Such’ refers to something which has pre¬ 
ceded and means ‘of that particular character specified/ An act may 
be valid if the intention of the legislature can be intelligently gathered 
from the whole act, however awkwardly expressed. The object and 
purpose of the Constitution in providing that an act shall embrace but 
one subject, which shall be expressed in the title, is to give notice to the 
legislator of the subject of legislation, and it is sufficient so long as the 
subject matter of the act is germane to that expressed in the title, 
whether the body enlarges or restricts the title. If a statute admits 
two constructions, one of which would render it constitutional, and the 
other unconstitutional, the former would be adopted. And a doubt in 
relation to its constitutionality should be resolved in favor of the act.” 
Judge Freeman dissented. 81, 162. Garvin v. The State. 1884. 

Legislative Acts—Duplicity—Barbering and Bathing on Sunday.— 
Turney, J., held: “The Acts of 1887, ch. 106, making it a ‘misde¬ 
meanor for any one engaged in the business of a barber, to shave, sham¬ 
poo, cut hair, or keep open their bath rooms on Sunday,’ is void, because 
it embraces two distinct subjects, to wit, ‘barbering’ and ‘bathing,’ in 
violation of this section.” 86, 273. 4 Itagio v. The State. 1887. 


1 See same case, art. 1, sec. 20, p. 191. 

3 See same case, art. 11, sec. 8; also M. & V., 1643. 


3 M. & V. 5691-2. 

4 See same case, art. 11, sec. 8. 



BILLS—TITLE, SUBJECT, REPEAL. 


285 


Title and Subject of Revenue Act of 1889, ch. 130. — The act under 
consideration was 1889, ch. 130. Lurton, J., held: “Under the title 
‘An Act to provide revenue for the State of Tennessee and the counties 
thereof/ the manner and all necessary means for the collection of any 
tax properly levied by the act may be provided for.” 88, 547. Ex 
parte Griffin. 1889. 

Title Broader than Subject.— The *act under consideration was that 
of 1889, ch. 22. S. F. Wilson, Sp. J., held: “A statute having but 
one subject, and that subject expressed in the title, is not unconstitu¬ 
tional because the title is broader and more comprehensive than the 
provisions of the act.” 90, 167. Powers v. McKenzie. 1891. 

Matters Naturally Connected With Act, Included — Mechanics’ Lien 
Law—Act 1889, Ch. 103.— Caldwell, J., held: “The title of said act 
is sufficient, under the constitutional requirement, to cover all the fore¬ 
going provisions. That title is as follows: ‘An Act to amend the 
mechanics’ lien law, and to afford mechanics and material men greater 
security for their work and material.’ . . . Where the title of a 
legislative act expressed a general subject or purpose which is single, 
all matters which are naturally and reasonable connected with it, and 
all measures which will or may facilitate the accomplishment of the 
purpose so stated, are properly included in the act, and are germane to 
its title.” 90, 468. z Cole Mfg Co. v. Falls. 1891. 

Caption — Title — Substance. 

Object of this Provision — Acts Pertaining to Salary of Adjutant 
General. — Cooper, J.: “The object of this provision of the Constitution 
was to prevent improvident legislation, and to direct the attention of 
the members of the legislature to the existing law and the proposed 
change. It requires a recital in the caption ‘or otherwise,’ which can 
only mean the preamble or body of the act of the ‘title or substance’ 
of the law affected. The ‘title’ of the Act of 1873 is nowhere men¬ 
tioned in the Act of 1877. ‘The substance of the Act of 1873 consists 
of the detail of the duties of the adjutant general, and the fixing of his 
compensation. The Act of 1877 does not purport to repeal the Act of 
1873. It only purports to amend that act by lowering the salary of the 
adjutant general, repealing so much of it as provides a salary for that 
officer in excess of the amount appropriated, and modifies it accordingly. 
In substance it amends the previous act by changing the salary, leaving 
it in full force in other respects, namely in regard to the duties of the 
adjutant general. Obviously the Constitution, by the section cited, did 
not mean to require a recital of the substance of an act so far as it is 
not repealed or amended. That would be useless. What it did mean 

> See Shan. Sup. to M. & V., p. 270. 2 See same case, art. 1, sec. 8, p 53. 



286 


TENNESSEE CONSTITUTIONAL LAW. 


was to have the ‘ substance 1 of that part of the act which is to be 
repealed or ameDded recited, so that the legislature maj^ understand 
the effect of its action. The ‘ substance ’ of that part of the Act of 1873, 
which is amended by the act of 1877, is the amount of salary. And 
the question comes to this, does an act which fixes the salary of an 
officer at a given sum per month, and in the body of it expressly repeals 
or amends all previous acts which give a salary in excess of the specific 
amount appropriated, contain a recital of the ‘ substance 1 of a previous 
act which does give a higher salary? Thus put, the answer is too 
obvious to require further discussion. And to require a more specific 
recital would be useless for the purposes intended by the provision of 
the Constitution, and would unnecessarily hamper legislation.” 69, 735. 
The State ex rel. v. Gaines Comfit. 1878. 

Justice of the Peace—Small Offense Law—Repeal of Statute—Art. 6, 
Sec. 14.— Deaderick, J. “ These cases present for determination the 
question of the validity of the *act of the last legislature, passed March 
24, 1879, entitled ‘An Act to give justices of the peace original jurisdic¬ 
tion of all misdemeanors, and to regulate appeals, in misdemeanors, 
from justices of the peace/ . . . The first section of the act, from 

its language, we think intends to give justices of the peace exclusive 
original jurisdiction in all criminal offenses known as misdemeanors, or 
cases where by laws existing at the time of the passage of the act, the 
penalty is a fine of not more than fifty dollars. It declares that all the 
offenses described ‘shall be tried in the first instance by the justice of 
the peace/ and then in the second section makes provision for appeal to 
the Circuit or Criminal courts. The language employed, that ‘alU these 
offenses ‘shall be tried in the first instance by justices of the peace/ 
excludes the construction that any of them may be tried ‘in the first 
instance 1 by the Circuit or Criminal courts. So that we entertain no 
doubt that the purpose of the act was to exclude the Circuit and Crim¬ 
inal courts from the exercise of original jurisdiction in misdemeanor 
cases, or cases in which the penalty is a tine not exceeding fifty dollars. 
Section 14 of article 6 of the Constitution ordains that ‘no fine shall be 
laid on any citizen of the State that shall exceed fifty dollars, unless it 
shall be assessed by a jury of his peers, who shall assess the fine at the 
term they find the fact, if they think the fine should be more than fifty 
dollars/ Pursuant to the foregoing constitutional provision, the legis¬ 
lature enacted that ‘where an indictable offense is punished by fine, or 
by fine and imprisonment, the jury shall assess the fine if in their opin¬ 
ion the offense merits a fine of over fifty dollars/ Code, sec. 5237. All 
misdemeanors were thus punishable at the time of the passage of the 
Act of March, 1879. And while it is true that the judge can not impose 


M. & V. 5819. 



BILLS—TITLE, SUBJECT, REPEAL. 


287 


a tine in a misdemeanor case exceeding fifty dollars, it is equally true 
that the jury, under the Constitution and law, in any misdemeanor case, 
may impose a higher tine. Thus it can not be said that a higher tine 
than fifty dollars can not lawfully be imposed upon any one guilty of the 
numerous offenses known as misdemeanors. And the act only purports 
to confer jurisdiction upon justices in cases where the penalty is not 
more than fifty dollars. But the act in question is obnoxious to another 
objection, which is fatal to it. It will be observed its purpose was to 
take away from the Circuit and Criminal courts original jurisdiction of 
misdemeanors and confer it upon justices of the peace exclusively, thus 
by implication repealing all acts then in full force and operation which 
conferred the jurisdiction upon said courts. Yet in the act which thus, 
in effect, repeals the acts giving such jurisdiction to the courts, no men¬ 
tion is made of the acts conferring the jurisdiction upon the courts, nor 
is any reference whatever made to them. The latter part of section 17 
of article 2 of the Constitution requires that 4 all acts which repeal, 
revive or amend former laws, shall recite in their caption or otherwise 
the title or substance of the law repealed, revived or amended/ It is 
manifest that no such recital, as required, is made in the caption or in 
any part of the act. And for the omission of this important require¬ 
ment of the Constitution, the act is repugnant to the Constitution, and 
therefore inoperative and void. In respect to the third section of the 
act, which in terms repeals sec. 4994 of the Code and the several subse¬ 
quent sections constituting the ‘small offense ' law, it is proper to say 
that that section has not the effect to repeal the sections of the Code 
cited, because it was manifestly not intended by the legislature that 
those sections should be repealed, unless the other sections of the act 
should be operative. The purpose of the act was to extend, not to con¬ 
tract, the jurisdiction of the justices of the peace. The sections cited 
were repealed, because the other parts of the bill included and preserved 
the jurisdiction given in the repealed sections and extended it. And it 
was not intended that the repeal of these sections of the Code should 
be repealed 1 except as a component part of the whole act/ Cooley Con. 
Lim., 185-6.” 70, 623. McGhee et al. v. The State. 1879. 

Act Creating Judicial Circuit.—COOPER, J., held: ‘‘Under an act enti¬ 
tled ‘An Act to create and establish a new judicial circuit/ a change in 
adjoining circuits by detaching one county from one of these circuits 
and attaching it to another, is sufficiently germane to the object as to 
be embraced in the caption as one subject, . . . and the positive 

provision takes the act out of that class of cases intended by that part 
of the same section of the Constitution which relates to ‘acts which 
repeal* former laws.” 71,332. l The State ex rel. Williams v. McCon¬ 
nell. 1879. 


1 See same case, art. 2, sec. 18. 



288 


TENNESSEE CONSTITUTIONAL LAW. 


Two Acts Passed to Repeal a Law Construed as Part of Same Legis¬ 
lation.— The validity of the Act of 1879, ch. 127, was the question here. 
McFarland, J., held: “This section is to be liberally construed, other¬ 
wise useful legislation would be unnecessarily embarrassed. If the 
legislature pass an act repealing a law without reciting in its caption 
or otherwise, the title or substance of the law repealed, and a subse¬ 
quent act is passed at the same session and within a few days of the 
same time as the first act, repealing the law which was attempted to be 
repealed by the first act, the two acts may fairly be supposed to have 
been in the minds of the legislators at the same time, and will be 
regarded as parts of the same legislation, and upon the passage of the 
last act, removing the constitutional objection to the former, it becomes 
valid in all respects.” Freeman, J., dissented. 71, 79. 1 The State ex 
rel. Morrell et al. v. Fickle Chairman. 1879. 

Act Creating Taxing Districts and Altering a General Penal Law — 
Subject and Title—Separate Acts. 2 — COOPER, J.: “The act Creating tax¬ 
ing districts of the second class can not be considered as an act to 
repeal or to amend the Act of 1877, for neither in its 1 caption or other¬ 
wise 7 does it recite the 1 title or substance 7 of the penal statute. Nor 
does it contain any such positive provisions upon the subject matter of 
the statute as would operate a repeal by implication. The sixteenth 
section, as we have seen, is merely negative in its language. The truth 
is, the legislature had a general intent to create a new class of 
municipal corporations, and a particular intent that this class of 
corporations should not be within the saving of the penal statute. The 
general intent is fully carried out in every respect, while the particular 
intent fails for want of the constitutional recitals or the positive lan¬ 
guage necessary for the purpose. And if there had been the proper 
recitals or language, the whole act would, perhaps, have been obnoxious 
to another provision of the section of the Constitution above cited, that 
‘no bill shall become a law which embraces more than one subject, that 
subject to be expressed in the title. 7 For the creation of a class of 
municipal corporations, and the alteration of a general penal law can 
scarcely be considered as one subject, even if the general law bear upon 
all municipal corporations. And the result would be the same if the 
sixteenth section be treated as an attempt to exempt one class of cor¬ 
porations from the operation of a provision of a general law. And it is 
at least doubtful whether a separate act which undertook to exempt 
one class of municipal corporations from the provisions of a penal law 
applicable to all such corporations, would be constitutional. 77 78, 484. 
Lea v. The State. 1882. 


1 See same case, art. 2, sec. 2, p. 267. 

2 Act 1881, ch. 127; M. & V., 1677 et seq.; Act 1877, ch. 23; M. & V., 5673. 



BILLS—TITLE, SUBJECT, REPEAL. 


289 


Legislature Must Determine How Broad Shall be the Object of a Stat¬ 
ute—Revenue Act of 1879. — With reference to the Act of 1879, ch. 79, 
Cooper, J., said: “The act itself, as we have seen, is entitled ‘An Act for 
the more rigid collection of the revenue.’ All of its provisions are 
directed to the end of securing the assessment and collection of prop¬ 
erty which has been omitted from the regular assessment. To this end 
it prescribes the mode of procedure by which the assessment shall be 
secured and the collection made, increasing for this specific purpose the 
jurisdiction of justices of the peace. The details of the act are all 
included in the subject of the caption. The caption is general, but that 
is no objection to it, so long as it is not made a cover to legislation 
incongruous in itself, and which by no fair intendment can be considered 
as having a necessary or proper connection. The legislature must 
determine for itself how broad and comprehensive shall be the object of 
a statute, and how much particularity shall be employed in the title in 
defining it. Cooley Const. Lim., 176; Woodson v. Murdock, 22 Wall., 
351; State ex rel. v. Whitworth.” 79, 56. Wilson v. Benton. 1883. 

Receive on Deposit—Sale of Cotton—’Act Regulating.—TURNEY, J.: 
“The use in the caption to ‘prevent sales of cotton’necessarily calls the 
attention to sales of every character and the steps ordinarily taken to 
effect them. The term ‘receive on deposit’ is used in the act in connec¬ 
tion with sale, barter and exchange, and as a step to their accomplish¬ 
ment. The legislature must be understood to have meant ‘to receive 
on deposit’ with a view to sell, and as a step taken to put the article on 
the market. In short, the term ‘sale’ must be construed to include 
everything necessary to its consummation, the offer to sell being the 
initial move, a deposit for sale is an offer to sell. ... We think the 
act does not violate the Constitution—that the act embraces but one 
subject in the title.” 81, 311. Truss v. The State. 1884. 

Warehouse Act of 1879. — INGERSOLL, Sp. J., without discussion, 
decided in this case that the Warehouse 2 Act of 1879, ch. 236, was not 
in violation of this section. 83, 239. Bank of Rome et al. v. Haselton 
et al. 1885. 

Title of Amendatory Act — When Sufficient — Depends Upon Title 
of Original Act — Acts Prohibiting Sale of Liquor to Minors and 
Drunken Husbands — Purview Not Germane. — LURTON, J.: “By the 
Act of 1881, ch. 90, the sale or gift of liquors to minors, without 
the written consent of parents or guardians in writing, is prohib¬ 
ited. The title of this act is, ‘An Act to prevent the sale, giving, 
or delivery of liquors to minors.’ This act is carried into the Code 
(M. & V.) at section 5673. By the Act of March 26, 1883 (M. & V. Code, 
section 5674), it was attempted to amend the Act of 1881 by extending 

1 M. & V., 5683. 2 M. & V., 2792. 


19 



290 


TENNESSEE CONSTITUTIONAL LAW. 


the prohibition to sales or gifts to any husband who is an habitual 
drunkard, whose wife has given written notice prohibiting such sale or 
gift. The title of this amending act, ‘A bill to be entitled an act to 
amend an act passed March 25, 1881, approved April 4, 1881, entitled 
an act to prevent the sale or giving or delivering liquors to minors.’ 
The title to the amendatory act in no way indicates the character of the 
amendment beyond a correct recital of the title of the act amended. 
It is not, however, important that the title of an amendatory act shall 
do more than recite the title or substance of the act amended, provided 
the amendment is germane to the subject of the original act, and is 
embraced within the title of such amended act. In other words, if the 
title of the original act is sufficient to embrace the matter covered by 
the amendment, it is unnecessary that the title of the amendatory act 
should, of itself, be sufficient. State v. Bowers, 14 Ind., 195; Browder 
v. The State, 16 Ind., 197; Morford v. Unger, 8 Iowa, 82. . . . 

“The precise question to be determined in this case is, whether the 
title of the original act, entitled 1 An Act to prevent the sale or giving 
or delivering liquors to minors/ is broad enough to embrace an amend¬ 
ment not relating in any way to the subject of prohibiting sales or gifts 
of liquors to minors, but which prohibits the sale or giving of liquors to 
drunken husbands. We are not at all disposed, as we have frequently 
announced, to construe this constitutional provision strictly. On the 
contrary, it should be given a liberal construction, so as not to embar¬ 
rass legislation by a construction unnecessary to the accomplish¬ 
ment of the beneficial purposes for which it was adopted. . . 

It is not to be doubted that the legislature might have, in one act, pro¬ 
hibited the sale of liquors to both minors and habitual drunkards, and 
that many other classes of persons might have been included within 
the prohibition. But in such case the title of the act should have been 
comprehensive enough to have included the several prohibitions. The 
title to the act in question is an exceedingly restrictive one. It clearly 
indicates that the subject of the act is the sale or giving of liquors to 
minors. The subject of the legislation is not the sale or giving of liquors 
generally, but the sale to a very limited class, to wit: minors. It would 
never occur to legislator or layman that under such an index would be 
found legislation prohibiting the sale of liquors to any other class of 
persons than minors. That the sale to drunken husbands is prohibited 
by this act is not indicated by the most liberal construction of its 
title. ... It follows that the amendment in question has not been 
constitutionally enacted, and is not therefore a valid law.” 87 109. 
Hyman v. The State. 1888. 

Mechanics’ Lien Law—Amendatory Statutes—Recital of Act Amended 
—“Revised Code.”— The question was the validity of the Act of 1887, 
ch. 85. Snodgrass, J.: “The act in question proposes to amend an 


BILLS—TITLE, SUBJECT, REPEAL. 


291 


existing law, and the only reference to the law to be amended is con¬ 
tained in the first section in the declaration: ‘That section 2746 of the 
Revised Code shall read as follows/ proposing a substitute for the entire 
section referred to. The objection is that the act does not recite in its 
caption or otherwise the title or substance of the act revised, repealed, 
or amended, as required. . . . The objection is well taken. If the 

act cau operate as a valid law, it is upon the idea that it eliminates a 
section from the ‘Code 7 of Tennessee and supplies its place with one of 
corresponding number. 

“There is no ‘Revised Code 7 of Tennessee, the legislature not having 
adopted or enacted any compilation of our statutes as such since the 
enactment of the Code of 1858, which, being the first Code, is not itself 
a revision. It therefore follows that it is not the amendment of a rec¬ 
ognized law to amend the ‘Revised Code, 7 nor is it necessarily the 
amendment of a law to amend any section of such supposed Code by 
number. It may be that in point of fact a given section of any com¬ 
pilation to which the legislature might refer, and specifically identify in 
an amending act, would turn out to be a correct reprint of an existiug 
law; but it is not so by force of its existence in such compilation, or 
by reason of its having a particular sectional number therein, as is the 
case in the Code enacted. Therefore, to make an amending act valid, 
there must be something more than the recitation in the Act of 1887. 
It will be remembered that, while we have no ‘Revised Code 7 in law, we 
have in fact two valuable compilations of the Statutes of Tennessee, to 
either of which this term is often applied, and to both of which it can 
be applied with equal accuracy. If it will be assumed, as argued, that 
one of them is referred to, it can not be told which. Neither is identi¬ 
fied by any distinctive legal term applicable to it, or more applicable to 
it than to the other. Nor is the identification made or attempted by 
designation of the compilers or otherwise. So that not only is no law, 
by title or substance, recited in the repealing statute, but no laiv is 
referred to, and, worse still, no book in which it can be found is named 
or identified in the reference. 

“It is argued, however, that it can be made to appear by inference 
that the repealing act was intended to amend the mechanics 7 lien law 
contained in the last compilation of our statutes by Milliken & Vertrees, 
because the amending act designates the number of a section, of which 
the corresponding number there is upon that subject, while the same is 
not true of the other compilation. The answer to this is, first, that 
surely no such inferential method of establishing an amendment could 
be resorted to in opposition to the plain terms of the constitutional pro¬ 
vision cited, requiring that the amendment shall actually ‘recite the title 
or substance of the law amended 7 ; and, second, that such inferential 
deduction by comparison can not be made to determine the application 


292 


TENNESSEE CONSTITUTIONAL LAW. 


of this act or the intent of the legislature to refer to that 1 revision,’ 
because the act in effect merely strikes out an entire section—not indi¬ 
cating on what subject it is, and therefore not, of course, confining its 
repealing operation to a section upon the same subject as that to be 
substituted—and substitutes another. There is no reason why it may 
not, therefore, as well eliminate and replace the corresponding number 
in one compilation as the other.” 87 , 126. Burnett v. Turner. 1888. 

Caption of Amendatory Statutes — Particular Character of Amend¬ 
ment. —The Act under consideration was that of 1887, ch. 144. Lurton, J., 
held: “ The caption of an amendatory statute need not indicate the partic¬ 
ular character of the proposed amendment, provided the title of the 
original act is therein set out, and the purview of the amendatory statute 
is germane to, and embraced within, the title thus recited.” This act 
was declared to come within this rule. 87 , 163. 1 The State ex rel. 
Whitson v. Algood. 1888. 

General Rules of Construction — 2 Acts Relating to Consolidation of 
Railway Corporations — Legislative Power. — The Statutes under consid¬ 
eration in this case were Acts of 1877, ch. 72, sec. 3, proviso 3; Acts 1881, 
ch. 9, sec. 1, relating to the consolidation of railway corporations. 
Lurton, J., held: “Railroad corporations can not, without legal permis¬ 
sion, consolidate with each other, or sell, lease, or mortgage their prop¬ 
erty; and therefore the legislature may couple with the grant of those 
powers such conditions and limitations as it chooses to impose. That 
is a valid and constitutional limitation upon the power of consolidated 
railway companies to make mortgages imposed by third proviso of the 
third section of the Act of 1877, amendatory of 4 the law in relation to 
the consolidation of railways/ which inhibits any railway corporation 
thereafter ‘to give or create any mortgage or other kind of lieu on its 
railway property in this State, which shall be valid and binding against 
judgments and decrees and executions therefrom for timber furnished 
and work and labor done on or for damages done to persons or prop¬ 
erty in the operation of its railroad in this State/” 

The Act of 1877, containing the restrictive proviso as above stated, 
was entitled “An Act to amend the law in relation to the consolidation 
of railways.” It extended the powers granted to existing railroads by 
Acts of 1871 and 1875 to any railroads then existing or thereafter 
created, with the limitations therein set out. The former acts had con¬ 
ferred upon existing railway corporations very ample power to consoli¬ 
date and to issue bonds and make mortgages. Lurton, J., held: “The 
proviso in Act of 1877, limiting power of consolidated railway corpora¬ 
tions to make mortgages, is germane to the title of the act; and that 
the act, as a whole, has but one subject, which is sufficiently expressed in 


1 See same case, art. 2, sec. 18, p. 301; art. 2, sec. 21, p. 302. 


2 M. & V. 1250 et seq. 



BILLS—TITLE, SUBJECT, REPEAL. 


293 


the title.” And further: “The Act of 1881, conferring the power to 
make mortgages upon all railway companies, in very broad terms, does 
not repeal the special limitations imposed by the Act of 1877 upon the 
power of consolidated railway companies to make mortgages of their 
property.” He also held: “The generality of the title of an act does 
not render it obnoxious to constitutional objection, so long as it is not 
made to cover legislation incongruous in itself, and which, by no fair 
intendment, can be considered as having a necessary or proper connec¬ 
tion. Within these limitations the legislature must determine for itself 
what particularity shall be employed in the titles of acts. And ‘any 
provision of an act directly or indirectly relating to the subject expressed 
in the title, and having a natural connection therewith, and not foreign 
thereto, should be held embraced in it.” 88, 140. Frazier v. Railway 
Co. 1889. 

When Two Statutes Repeal Another — Repeal of Repealing Statute— 
Effect on statute Repealed.— The defendant was indicted for illegally 
selling liquors. After reviewing the history of the statutes on this 
point, Turley, J., said: “We will now proceed to examine the grounds 
upon which the defense in this case is made to rest. First, it is said 
that the Act of 1838, ch. 120, only repeals the Act of 1831, ch. 80, which 
authorized every person, upon the payment of twenty-five dollars, to 
procure a license to retail spirituous liquors, and so much of the fourth 
section of the Act of 1835, ch. 13, as required the keeper of an ordi¬ 
nary in addition to his tax of five dollars for such license, also to pay 
twenty-five dollars additional tax for the privilege of retailing spirituous 
liquors. And that the necessary consequence is, that inasmuch as these 
statutes operated as a repeal of the Acts of 1811, ch. 13, and 1823, ch. 33, 
their repeal again sets up the Acts of 1811 and 1823. To this objection 
it is answered, first, that though it may be true that the Act of 1838 
only repeals the Act of 1831 and part of the Act of 1835, yet neither 
the Act of 1811 nor 1823 can be set up thereby, because the Acts of 
1811 and 1823 are also repealed by the Act of 1832, ch. 34, which is not 
repealed by the Act of 1838, and this upon the principle of the con¬ 
struction of statutes, that when two statutes repeal another, a repeal 
of one of the repealing statutes will not again set up the statute 
repealed. We recognize the correctness of the legal principle, and the 
only question then is, whether the Act of 1832 is a repeal of the Acts 
of 1811 and 1823? We think it is.” 19 , 253. Dyer v. The State. 1838. 

Repealing Act Reciting in Caption Title Only of Old Act, Valid.— 
By sections 39 to 49, inclusive, of an act passed February 25, 1870 
(prior to Constitution of 1870), Athens was granted a legislative charter. 
This act embraced several distinct subjects, and its title contained no 
reference to this part of its subject matter. By an Act passed in 1879 


294 


TENNESSEE CONSTITUTIONAL LAW. 


this charter was repealed. The repealiug act gave no intimation, either 
in its caption or body, of the nature of the legislation to be repealed, 
but recited in its caption the title of the Act of 1870, and in express 
terms repealed sections 39, 40, 41, 42, 43, 44, 45, 4G, 47, 48, and 49 of 
chapter 69 of an Act passed February 25, 1870. Snodgrass, J., held: 
“This repealing Act of 1879 does sufficiently recite in its ‘ caption or 
otherwise the title or substance of the law repealed.’” 91, 21. Buohs 
v. Athens. 1891. 

Act of 1891, Ch. 101—Repeal by Implication.—LURTON, J., held: 
“The title to Act of ’1891, ch. 101, though containing unnecessary 
details and particulars, is single, and embraces but one subject, 
and that the subject is fully expressed in the title.” He reaffirmed 
the doctrine that “the constitutional provision requiring laws repealiug 
or amending former laws to recite in the caption or otherwise the law 
repealed or amended, does not apply to repeals or amendments which 
result from necessary implication.” 91, 491. 2 Railroads v. Crider et 
al. 1892. 

Amendatory Statute — Reciting Subject of Statute Amended.— LUR- 
ton, J., held: “The constitutional requirement that amendatory statutes 
shall recite in their ‘caption, or otherwise,’the ‘ title or substance’ of 
the statute amended, is satisfied by the recital of the subject of the 
statute amended in the body of the amendatory statute, without more. 

. . . Section 3 4881 (T. & S.) Code makes horse-racing legal when run 

upon a regular track. Acts 1891, ch. 115, amends said section of the 
Code by providing ‘that said section and this amendment shall apply to 
trotting and pacing races as well as running races.’ The amendatory 
act sufficiently recites the ‘substance’ or subject of the original statute 
—to wit, horse-raciug—and is valid. . . . Question reserved: Is it a 

sufficient recital of the ‘title’ of the act amended to refer to it in cap¬ 
tion or body of amendatory act as a designated section of the Code of 
Tennessee?” 91,716. Bansome v. The State. 1892. 

Recitals in Amendatory Statutes—Act 1889, Ch. 161—Code of 
Tennessee.— “The Constitution requires that amendatory statutes ‘shall 
recite in their caption or otherwise the title or substance’ of the law 
amended. A 4 statute amendatory of the Code was entitled ‘An Act to 
amend section 4652, sub-section 16, of the Code of Tennessee,’ and con¬ 
tained in its body substantially the same description of the law amended. 
This statute contained no reference to the substance of the law amended.” 
Caldwell, J., held: “The amended law is sufficiently recited in both 
the caption and body of the amendatory act.’ . . . The compilation 

of 1858 is entitled ‘An Act to revise the statutes of the State of Ten¬ 
nessee.’ It is provided therein that this compilation is to be designated 


1 Shan. Sup. to M. & V., p. 116. 

2 See same case, art. 11, sec. 8. 


3 M. & V., 5701, Acts 1891, ch. 115. 
“Shan. Sup. to M. & V., p. 278. 



BILLS—TITLE, SUBJECT, REPEAL. 


295 


as the ‘Code of Tennessee.’ Hence either title maybe used in the 
recital of an amendatory statute.” 92, 320. The State v. Runnels. 1893. 

Latest Construction of Entire Section. 

Doctrines Announced in Previous Cases Reaffirmed — The Provision 
as to Subject of Statutes Mandatory — Rule as to Generality of Title — 
“Caption” Synonymous with “Title” — “Otherwise” Refers to Body of 
Act — Singleness of Statute — Repealing Statutes — Implication—Act of 
1895, Ch. 67, to Protect Innkeepers, Valid.—CALDWELL, J., held : “The 
constitutional requirement that a statute shall not embrace more than 
one subject, which shall be expressed in the title, is mandatory. A statute 
framed in contravention of this provision is invalid. Generality of the 
title of a statute is not objectionable unless it is made to cover legisla¬ 
tion incongruous in itself or foreign to its object. It is sufficient if the 
title describes with adequate clearness the general purpose and scope 
of the act. It. is not essential that the title be made an index or 
epitome of the statute, nor is it necessary that the title should set forth 
the modes, means, or instrumentalities which may be provided in the 
statute for its administration and enforcement. All matters which are 
naturally and reasonably connected with the subject of a statute, 
either directly or indirectly, and all measures which will or may facil¬ 
itate the accomplishment of the purpose of the statute, are properly 
included iu it. . . . The word ‘caption’ is synonymous with ‘title/ 

and the word ‘otherwise’ refers to the body of the repealing, reviving 
or amending act. Repeals, amendments and revivors of statutes by 
implication are not within the constitutional requirement that ‘all acts 
which repeal, revive, or amend former laws shall recite in their caption, 
or otherwise, the title or substance of the law repealed, revived or 
amended.’ That a statute contains an express general repealing clause 
does not bring it within the constitutional requirement that the title or 
substance of the repealed act shall be recited in the caption, or other¬ 
wise, by the repealing statute. The presence or absence of this repeal¬ 
ing clause is unimportant iu determining the character of the statute. 

“The title ‘An Act to protect hotel, inn, and boarding-house keepers,’ 
sufficiently complies with the constitutional requirement that the sub¬ 
ject of a statute shall be expressed in its title. The subject expressed 
in this title is the protection of the classes named, and . . . embraces 

only one subject, viz., the protection of the classes mentioned. . . . 

Although, in several sections, it provides (1) that certain fraudulent 
acts, to the prejudice of hotel, inn and boarding-house keepers shall be 
misdemeanors; (2) what shall constitute prima facie evidence of fraud¬ 
ulent intent in prosecution of those acts; and (3) for the sale of bag¬ 
gage and other property left by defaulting patrons of hotels, inns and 
boarding houses.” 95, 546. x The State v. Yardley. 1895. 


1 See same case, art. 1, sec. 6, p. 12; sec. 18, p. 132. 



296 


TENNESSEE CONSTITUTIONAL LAW. 


BILLS—HOW PASSED—WHEN TAKE EFFECT. 


Amendments—Entries on Journals. 

PAGE. 


Amendment of Bank Charter on Third 

Reading. 297 

Failure of Journal to Show Readings of 

Bills. 298 

Amendments to Bills—Concurrence of the 
Houses — Journals as Evidence — 

Salaries of Judges. 298 

When Journal May be Looked to—Ayes 

and Nays. 299 

Passage of Laws—Entries on Journals— 
When They May and May Not be 

Looked to. 300 

Entries on Journals—Presumptions—When 

in Favor of Regularity of Passage.. 301 


Laws of General Character. 

Bill of General Character A pplies to Such 
Statutes as Affect Rights of the 


People. 302 

Act Changing County from One Circuit to 
Another—Special Laws—Appropri¬ 
ations-Ayes and Nays. 302 


When Statutes Take Effect—Journals, etc. 

PAGE. 


“From and After Its Passage.”. 303 

Forty Days from End of Special Session.... 304 

“Forty Days from Passage”—How Com¬ 
puted—Statute Passed, When. 304 

Forty Day Clause—Act Repealing Charter 

of Village Not a General Law. 304 

Statute Takes Effect When Formalities are 

Complete—Governor’s Approval— 304 

Description of Act in Journal Entries— 
Conference Committee — Construc¬ 
tion of Report—When Statute Takes 
Effect. 306 

Bills Containing Same Substance—Passage 
of Laws at Extra Session Previously 
Rejected at Regular Session—“ Ses¬ 
sion ” Defined. 306 

Act Directing How Statute Shall be Con¬ 
strued—Considered With Relation 
to Section 18.249 


Art. 2, Sec. 18. Every bill shall be read once on three dif¬ 
ferent days, and be passed each time in the house where it 
originated before transmission to the other. No bill shall be¬ 
come a law until it shall have been read and passed on three 
different days, in each house, and shall have received on its final 
passage, in each house, the assent of a majority of all the mem¬ 
bers to which that house shall be entitled under this Constitu¬ 
tion, and shall have been signed by the respective speakers in 
open session—the fact of such signing to be noted on the jour¬ 
nal; and shall have received the approval of the Governor, or 
shall have been otherwise passed under the provisions of this 
Constitution. 

[ Const. 1834, art. 2, sec. 18. “ Every bill shall be read once on three dif¬ 
ferent days, and be passed each time in the house where it originated before 
transmission to the other. No bill shall become a law until it shall have been 
read and passed on three different days in each house, and be signed by the 
respective speakers.”] 

[Const. 1796, art. 1, sec. 15. “Every bill shall be read three times, on 
three different days, in each house, and be signed by the respective speakers 
before it becomes a law.”] 

Art. 2, Sec. 19. After a bill has been rejected no bill con¬ 
taining the same substance shall be passed into a law during the 

same session. 1 [Same as Const. 1834, art. 2, sec. 19; Const. 1796, art. 1, 
sec. 16.] 

Art. 2, Sec. 20. (The style of the laws of this State shall 
be: “ Be it enacted by the general assembly of the State of Ten¬ 
nessee.”) No law of a general nature shall take effect until forty 
days after its passage, unless the same or the caption, shall 
state that the public welfare requires that it should take effect 

sooner. [Const. 1834, art. 2, sec. 20, and Const. 1796, art. 1, sec. 17, con¬ 
tained only the clause in parenthesis.] 


Art. 2, Sec. 21. Each house shall keep a journal of its proceed¬ 
ings and publish it, except such parts as the welfare of the State 


* 69 120. 

















BILLS —HOW PASSED-WHEN TAKE EFFECT. 


297 


may require to be kept secret; the ayes and noes shall be taken in 
each house upon the final passage of every bill of a general char¬ 
acter, and bills making appropriations of public moneys; and the 
ayes and noes of the members on any question shall, at the re¬ 
quest of any five of them, be entered on the journal. [Const. 1834 , 
art. 2, sec. 21, read “any two” instead of “five;” otherwise same as above.]' 

[Const. 1796, art. 1, sec. 18. “ Each house shall keep a journal of its pro¬ 
ceedings and publish them, except such parts as the welfare of the State may 
require to be kept secret; and the yeas and nays of the members on any ques¬ 
tion shall, at the request of any two of them, be entered on the journals.”] 

Amendments—Entries on Journals. 

Bank Charter—Amendments Upon Third Reading of Bills.—CARUTH- 
ers, J.: “A more plausible constitutional objection, to say the least of 
it, might be made to this charter, if the fact be, as assumed, that the 
section containing it was offered and adopted as an amendment on the 
third reading of the bill, grounded on the eighteenth section. . . 

The intention of this requirement is to insure full consideration and 
mature reflection upon every measure before them, and that no bill 
shall be hastily and inconsiderately passed. If this mode had been 
adopted in a case like the present, the time intervening between the 
different readings and the repeated readings of the bill would probably 
have caused some one to think of turning to the Act of 1843 and bring¬ 
ing its contents before the house, if, indeed, the fact were as stated, that 
this was not done, nor its contents known to the members—that is, that 
they were voting in the dark, and in utter ignorance of what kiud of 
law they were making. We have already said that we are forbidden by 
our respect for that honorable body to arrive at a conclusion so dis¬ 
paraging to them. Yet it is certain that conformity to the Constitution, 
in this respect, would tend to prevent such an occurrence as that pre¬ 
sented in the argument. It is said that it is not unfrequently the case, 
and that the fact was so in this instance, that provisions entirely dis¬ 
tinct from those in a bill will be thrown on, under the name of amend¬ 
ments, on the third and last reading in both houses, and sent to the 
house where the bill originated for concurrence, when a favorable action 
will make it, as well as the original bill, the law of the land. Now, this 
has the appearance, at least, of an evasion of the Constitution. If the 
new matter is not germane to that of the original bill, it would seem to 
be a new bill, although it may be called an amendment, and, if so, should 
be read three times, instead of once, in each house. But the case before 
us does not call for an adjudication of this question, and it is only 
referred to now as one of sufficient importance to be maturely consid¬ 
ered of by the legislature aud the profession. It is certainly a very 
unsafe and improvident mode of legislation, and not to be favored. How 
this question should be brought up, and what would be the decision 
upon it, is left for a case in which it may arise.” 35 , 626. l Ferguson v. 
Miners etc. Bank. 1856. 


1 See same case, art. 2, sec. 2, p. 252; art. 2, sec. 21, p. 302; art. 11, sec. 8. 



298 


TENNESSEE CONSTITUTIONAL LAW. 


Failure of Journals to Show All the Readings of Bills. — COOPER, J., 
held: “The mere fact that the journals of the senate fail to show the 
second reading of a bill, will not affect its validity as an act, when it 
appears that it was passed on three several readings in the house of 
representatives, and two readings in the senate, one of them purporting 
to be the third reading, at which time it was passed with all the requi¬ 
site formalities, and that it was signed by the speaker of each house in 
open session, and approved by the governor, in accordance with the 
requirements of the Constitution.” 71, 332. l The State ex rel. Will¬ 
iams v. McConnell. 1879. 

Amendment to Bills—Concurrence of the Houses—Journals as Evi¬ 
dence—Salaries of Judges. —By chapter 3 of the Acts of 1879, the salaries 
of judges “hereafter appointed or elected” were fixed at $2,000 per 
annum, and the previous law under which the judges got $2,500, was 
repealed. Horrigau was appointed by the governor on August 1, 1879. 
McFarland, J.: “It is earnestly maintained that as it is shown that the 
senate did not concur in the amendment of the bill adopted by the 
house, that the bill as published never did receive the assent of the two 
houses. Many authorities are referred to to show that notwithstanding 
an act has the signature of the two speakers and the approval of the 
governor, and is published by proper authority, nevertheless the courts 
may look to the journals of the two houses, and if from them it appears 
that the bill was not constitutionally passed, the act must be declared 
void. Such seems to be the decided weight of authority. Whether 
this rule would prevail to its full extent in view of the new provision of 
our present Constitution, requiring all bills to be signed by the respective 
speakers, in open session, and the fact of such signing to be noted on 
the journals, need not, in the view we have taken of the question, be 
definitely settled. It might be plausibly argued that this provision was 
intended to furnish conclusive evidence that the bills, in the form finally 
signed by the speakers, were the bills actually passed by the two houses. 
The act being performed in open session, it could hardly occur that the 
signatures should be affixed to bills never actually passed, without some 
member of the body discovering the mistake. It would seem this 
ought to be evidence of as high authority as the journals, at least as to 
all matters not expressly required to be shown by the journals. How¬ 
ever, we do not mean to intimate any decided opinion upon this 
question. 

“We hold that conceding the journals to establish all that is claimed, 
the bill was not amended in the house so as to change its legal import 
and effect. According to the opinion of a majority of this court at the 
present term, the first section of .this act would have effected a valid 


1 See same case, art. 2, sec. 17, p. 287. 



BILLS—HOW PASSED—WHEN TAKE EFFECT. 


299 


change of the law if the second section had been omitted altogether. 
The secoud section only purports to repeal so much of the previous law 
as conflicts with the first section. . . . 

“It is earnestly argued that it would be a very great stretch of judi¬ 
cial power for a court to undertake to say that the amendment is imma¬ 
terial; that this was a question for the two houses of the legislature; 
that it was enough for this court to see that the bill was amended iu the 
house, and the senate did not concur in the amendment; that we can 
not look beyond to see in what the amendment consisted. But it seems 
to us that it would be the exercise of a power far more arbitrary and 
unwarranted for the court to declare the act of the supreme legislative 
authority void upon an objection like this, in which there is no sub¬ 
stance. If we may look to the journals to see that in form there was 
an amendment not concurred in, we may look further to see that in 
substance there was no amendment. We have no direct authority upou 
the point, but we are of opinion that the act can not be declared void, 
for the reasons giveu. The bill did receive the assent of both houses in 
the constitutional mode.” Freeman, J., dissented. 72, G10. 1 Gaines 
Comptroller v. Horrigan. 1880. 

Journal May be Looked to, When—Ayes and Nays. — It was insisted 
in this case that ch. 21 of the Acts of 1879 had not been passed accord¬ 
ing to the constitutional requirements. After reviewing the facts, 
McFarland, J., said: “From these facts we are of opinion that the 
principal objections taken to the bill do not exist iu fact; that the bill 
was passed, the amendment of the senate concurred in by the house, 
the bill signed by both speakers in open session, and the fact noted upon 
the journals. Notwithstanding the confusion in the numbers, we think 
these facts do sufficiently appear. The only question, therefore, that 
is raised by these facts is, whether the failure of the journal of the 
house to show affirmatively that the bill received on its third reading 
the constitutional majority, is fatal. The rule is, that the journals may 
be looked to iu order to determine whether the bill was iu fact passed, 
but every reasonable presumption must be made iu favor of the action 
of a legislative body acting in the apparent performance of its legal 
functions. The courts will not presume, from the mere silence of the 
journals, that the house had disregarded the constitutional requirements, 
unless where the Constitution expressly requires the fact to appear on the 
journals. Cooley Com., secs. 135, 136. Our Constitution does not re¬ 
quire that the ayes and noes shall appear on the journal, or that it shall 
affirmatively appear that the bill received the constitutional majority. 
We will not, therefore, presume that this bill was declared passed, when 
in fact it was not, especially when we see that it was afterward sigued 

1 See same case, art. 6, sec. 7. 


300 


TENNESSEE CONSTITUTIONAL LAW. 


by the speakers in open session, and the fact announced and entered 
upon the journals. We hold the law to have been constitutionally 
passed, and the judgment will be affirmed.” 74 , 553. Williams v. The 
State. 1880. 

Passage of Laws—Entries on Journals—When They May and May 
Not he Looked To. —The question here was the constitutionality of the 
Act of 1887, p. 232. Snodgrass, J.: “If all the entries in the journals 
can be looked to, it appears affirmatively that this bill was rejected. 
But it is most earnestly argued that section 18 of article 2 of the Con¬ 
stitution, which requires, among other things, that a bill, after being 
passed, shall be 1 signed by the respective speakers in open session, the 
fact of such signing to be noted on the journals/ is the only mandatory 
provision for a journal entry $ and when such entries appear on the 
journals of both houses (as in this case) all inquiry is cut off, and any 
affirmative proceeding, irregularity, or omission is cured or supplied, 
and the bill must be conclusively held to have passed as required by the 
Constitution. This view is plausible, and is supported by much per¬ 
suasive authority in other States, but we do not assent to its correctness. 
The Constitution of this State requires the keeping of a journal by each 
house, in which its proceedings shall be written, and that it shall be 
published. Art. 2, sec. 21. 

“There is no provision which, in terms, gives one entry a force and 
validity superior to another, and we can not undertake to do so by con¬ 
struction. Besides, we think there is another section of our Constitu¬ 
tion which provides, by clear implication equivalent to positive direc¬ 
tion, for keeping a record of the rejection of bills, as well as of their 
passage or purported passage. The nineteenth section of article 2 
declares that 1 after a bill has been rejected, no bill containing the same 
substance shall be passed into a law during the same session.’ It man¬ 
ifestly contemplates that the record shall show the rejection of any bill 
offered, and if it does show it, that no other of the same substance can 
be constitutionally passed. If it should then appear from the journal 
of either house that a similar bill had been before rejected during the 
same session, and subsequently this one regularly passed, we would be 
compelled to look to the journal to ascertain the rejection of the first, 
and, having done so, to declare the last void for this reason. 

“Now,it would be a strange construction to hold that we might look 
to the journals to ascertain whether another had been so rejected as to 
make the one considered void, but could not look to the same journals 
to ascertain whether the act involved had been itself rejected. If it 
was an answer that the entries showing that the bill was signed by the 
speakers of both houses in open session must be treated as conclusive 
that the former entry of rejection was erroneous, or had been vacated, 
it would be equally an answer to the same objection in respect to the 


BILLS—HOW PASSED—WHEN TAKE EFFECT. 


301 


apparent previous rejection of another similar bill; for it might be pre¬ 
sumed that the entry of rejection had been rescinded, and the action so 
apparently made of record reconsidered. The same presumption that 
the legislature would do its duty in respect to compliance with section 
19 arises that prevails with regard to any other section. 

“To indulge in such presumptions in the face of affirmative evidence 
on its own record to the contrary would operate to amend the constitu¬ 
tional provision quoted, so as to make it read that ‘after a bill has been 
rejected, no bill containing the same substance shall be passed into a law 
during the same session. But if such bill is passed, it shall be presumed 
that no other of the same substance was rejected, and the one so passed 
shall be valid.’ 

“We held at Nashville in the baseball case (Hayes v. The State) that 
while the journals would be considered in determining the validity of an 
act of the legislature, every reasonable inference and presumption would 
be drawn and indulged in favor of the regularity of its passage, and 
where it did not affirmatively appear not to have passed, and such 
legitimate construction could be given to the record as sustained the 
law, it would be done. But in doing so we weut as far as souud reason 
and authority require. We hold uow that irregularities will be cured 
and omissions supplied by presumption, but where it affirmatively ap¬ 
pears that a bill was rejected, the journal entry so showing can not be 
disregarded, and the act is void.” 86, 734. Brewer v. Mayor etc. of 
Huntingdon. 1888. 

Entries on Journals—Presumptions—When in Favor of Regularity 
of Passage.— Act under consideration that of 1887, ch. 144. Ltjrton, 
J., held: “Where an act of the legislature has been signed by the 
respective speakers of both houses in open session, and that fact noted 
on the journals, and has been approved by the governor, every reasona¬ 
ble presumption and inference will be made in favor of the regularity 
of its passage, and it will be upheld unless the journals affirmatively 
show that it was defeated.” In delivering the opinion he said: “We 
think the rule well settled that where the journal does not affirmatively 
show the defeat of the bill, every reasonable presumption and inference 
will be indulged in favor of the regularity of the passage of an act sub¬ 
sequently signed in open session by the speaker. . . . The journal 

does not show affirmatively that this bill did not pass. The motion to 
reconsider, being duly entered, postponed the final fate of the bill. We 
know, as a matter of history and common political experience, that it is 
not unusual for a bill to be defeated and the adverse vote subsequently 
reconsidered and the bill finally passed. The Constitution requires that 
after a bill has passed three readings in each house, ‘it shall be signed 
by the respective speakers in open session, the fact of such signing to 
be noted on the journals.’ The fact that, after an adverse vote, a motion 


302 


TENNESSEE CONSTITUTIONAL LAW. 


to reconsider was entered, and that the journal does not show any 
disposition of this motion, and that subsequently this bill was signed in 
open session by the speaker of the senate, as shown by the journal, 
authorizes us to presume that the failure of the journal to show the 
final passage of this bill is due to a clerical omission. This is, under 
the law applicable, the legitimate construction to be placed upon the 
whole record.” 87, 168. ’The State ex rel. Whitson v. Algood. 1888. 

Laivs of General Character—Ayes and Noes. 

Bill of General Character Applies to Such Statutes as Affect Rights 
of the People.— Caruthers, J.: “It is insisted that the act chartering 
the plaintiff is invalid upon another ground; that is, the journals do 
not show that the ayes and noes were taken and recorded upon its final 
passage, as required by the Constitution, art. 2, sec. 21. The provision 
is that ‘the ayes and noes shall be taken in each house on the final pas¬ 
sage of every bill of a general character, and bills making appropria¬ 
tions of public moneys.’ Whether this would be regarded as only 
directory upon the members who were acting under an oath to support 
the Constitution, of which it is a part, or that it would be presumed 
that they had complied, and the clerk had failed to enter it upon the 
journal, it is not necessary to decide in this case, because this was not 
‘a bill of a general character.’ That description was evidently intended 
to apply to such statutes as would affect the rights of the people at 
large, or all that might be embraced in a certain category—as, all banks, 
all sheriffs, etc. Mayor and aldermen of Alexandria v. Dearmon. This 
was an act to create a private corporation, to bring into existence a new 
artificial person, and can not in any legal sense be regarded as of a 
‘general character.’” 35, 625. 2 Ferguson v. Miners etc. Bank. 1856. 

Act Changing County from One Circuit to Another—Laws of a Gen¬ 
eral Character — Special Laws—Appropriations—Ayes and Noes. —The 
Act under consideration was that of 1887, ch. 144, changing White 
county from the sixth to the fifth circuit. Lurton, J.: “Is this such a 
bill as requires the ayes and noes to be taken? This depends upon 
whether it is a bill making an appropriation of public moneys or a bill 
( of a general character’ within the meaning of the Constitution. It is 
clearly not an appropriation bill. The very able counsel who have 
argued this cause for complainant insist that every law which is a pub¬ 
lic law is a bill of a general character. Any number of authorities have 
been cited to show that bills chartering banks and municipal corpora¬ 
tions are public laws, and not private acts. This is conceded, but this 
is not the question. The legislature is, by another provision of the Con¬ 
stitution, prohibited from passing any private or special acts. All laws 


1 See same case, art. 2, sec. 17, p. 292; art. 2. sec. 21, this page and the next. 

2 See same case, art. 2, sec. 2, p. 252; art. 2, sec. 18, p. 297 ; art. 11, sec. 8. 



BILLS — HOW PASSED—AVHEN T TAKE EFFECT. 


303 


mast be general in the sense that they must apply to all alike. But 
if the framers of the Constitution used the phrase ‘laws of a general 
character’ in contradistinction to private or special laws, then why was 
it necessary to add: ‘And laws making an appropriation of public 
moneys?’ The greater would have included the less. Appropriation 
bills are not private or special laws. We think the phrase ‘laws of a 
general character’ is used to distinguish general legislation — legislation 
in which the whole body of the people have, or may have, an interest— 
from legislation of a purely local character. Laws may be public in 
their objects and either general or local iu their application. Thus, a 
law creating a new county, or changing a county line, or moving a 
county site, or creating a municipal corporation, would be public laws; 
and yet they would be local and not general in their application. They 
would not be laws of a general character, but laws of local application. 
The act in question changed two counties from one to another circuit, 
and fixed the terms for the courts of one or two others. Such a law is 
not a ‘law of a general character/ but a law limited and local in its 
application. The constitutional provision relied upon was not applicable 
to such legislation.” 87, 170. l The State ex rel. Whitson v. Algood. 1888. 

When Statute Takes Effect—Journals, Etc. 

When Statute Begins to Run—“From and After” its Passage.— 
Shackleford, J.: “ When the act has been signed by the speakers of 
both houses (as it must be to become a law), it takes effect from its 
passage by relation, aud not from the time it is signed by the speakers. 
And if it be a repealing statute, it avoids any act done by authority of 
the repealed law in the interval, between its passage aud signing. 
Meigs’ Rep., 237. 

“In the act under consideration a period of about seven months is 
fixed before it goes into operation. The object and purpose of the law 
was to induce parties to bring money iuto the State, by an increased 
rate of interest, to loan it at ten per cent, which had been previously 
prohibited, and under the provisions of that act this note was executed. 
Did the legislature inteud by the use of the words ‘from and after ’ that 
the act should go into effect on the 2d day of September? If so, 
the word from 1 would convey no meaning, and should not have been 
used. Without the use of that term, ‘ after ’ would convey the meaning 
that it took effect on the 2d of September. By the use of the words 
‘from aud after’ (that is, on the 1st day of September, 1801, and after 
that time) the law should have full force and effect. We are, therefore, 
of the opinion that the act in question took effect on the 1st day of Sep¬ 
tember, 1861, and after that time it was in full force aud effect uutil it 

1 See same case, art. 2, sec. 17, p. 292; art. 2, sec. 18, p. 301. 


304 


TENNESSEE CONSTITUTIONAL LAW. 


was repealed. The solution of the second proposition must depend 
upon the construction to be given to the second section of the act under 
consideration.” 43 , 460. 1 Turner et al, v. Odum. 1866. 

When Statute Takes Effect Forty Days from End of Special Session. 
—Turney, J. “An adjournment to a day certain, to hold a special ses¬ 
sion, does not put acts passed in operation until forty days from end of 
the latter session. 2 ” 48,311. Day v. McGinnis. 1870. 

Forty Days From Passage—How Computed—Statute Passed, When.— 
Deaderick, J., held: “The time at which an act of assembly takes effect, 
forty days after its passage, is ascertained by computing from the date 
of its signature by the governor, or its final passage over his veto.” 
50 , 443. Logan v. The State. 1872. 

Forty Day Clause—Act Repealing Charter of Village Not a General 
Law.— Freeman, J., upon a petition to rehear, said: “Another question, 
however, is now for the first time presented, but which is fairly raised 
by the facts of the agreed case. It is, that the act repealing the charter 
of the town of Hartsville did not take effect until forty days after its 
passage, under art. 2 sec. 20, of the Constitution of 1870. The act was 
passed March 28, 1879, and approved by the governor on the 31st. The 
whisky in this case is charged to have been sold on the 1st day of May, 
1879, consequently in less than forty days after the passage of the law. 
The concluding clause of the statute is, 'that this act shall take effect 
from and after its passage.’ The clause of the Constitution referred to 
is, 'No law of a general nature shall take effect until forty days after its 
passage, unless the same or the caption shall state that the public wel¬ 
fare requires it should take effect sooner.’ Now, if this was a general 
law, in the sense of the Constitution, it would be clear the law could 
not take effect till forty days after its passage. But then the law repeal¬ 
ing the charter of a village is not a general law, one equally operative 
in every part of the State, or upon all individuals who may bring them¬ 
selves within its provisions. No town in the State could be affected by 
this repeal except the town of Hartsville, nor was intended to be. It is 
as special as a law can be, operating upon only one single village of the 
State. It, therefore, is not included in this provision of the Constitu¬ 
tion, and the objection fails.” 71 , 477. Johnson v. The State. 1879. 


Statute Takes Effect When Formalities are Complete — Governor’s 
Approval.—C ooper, J.: “Under the Constitution of 1834, of this State, 
it was held that upon the signing of a bill by the speakers of the two 
houses, after its passage by the legislature, 'the law takes effect from 


1 Overruled on another point by Jackson v. Collins, 49, 499. 
8 See 39 , 38. T. & S., 162. 



BILLS —HOW PASSED—WHEN TAKE EFFECT. 


305 


the date of its passage by relation.’ 1 Dyer v. The State. The reason 
given was that the doty performed by the speaker in signing the statutes 
is not of a legislative but ministerial character. The absurd doctrine 
of the common law, that a statute might go into effect before the form¬ 
alities prescribed to give it effect had actually been performed, was 
still adhered to. The Constitution of 1870, art. 2, sec. 20, provides: ‘No 
law of a general nature shall take effect until forty days after its pass¬ 
age, unless the same or the caption shall state that the public welfare 
requires that it shall take effect sooner.’ And by sec. 18 of the same 
article it is further provided, among other things, that no bill shall 
become a law until it ‘shall have been signed by the respective speakers 
in open session, the fact of such signing to be noted on the journal, and 
shall have received the approval of the governor, or shall have been 
otherwise passed under the provisions of this Constitution.’ The pro¬ 
visions thus alluded to are ... to the effect that the bill shall 
become a law without his signature if passed by a majority of each 
house over his veto, or if the governor fail to return the bill with his 
objections within five days, Sundays excepted, after it shall have been 
presented to him, and the general assembly continues in session so long. 
These constitutional provisions establish as the present rule that an act 
takes effect when the formalities of enactment are actually complete 
under the Constitution, and not sooner, even where the legislature says 
that it shall take effect from its passage. It is passed when the con¬ 
stitutional formalities are completed.” 73, 728. Hill v. The State. 
1880. 


1 In the case of Dyer v. The State, 19, 253, decided in 1838, Turley, J., said : “ It is said in de¬ 
fense that Dver, on the morning of the 27th of January, 1838, applied to the clerk of the County 
court of Davidson for a license to retail spirituous liquors, which was refused, although there was 
then no law in existence prohibiting it. The Act of 1838, ch. 120, had passed both houses of the 
legislature on the 2t»th of January, 1838, but was not signed by the speakers till the evening of the 
27th. And it is contended that the act had no validity till this was done, and, therefore, could 
not have taken effect at a period anterior thereto. . . . We think the law takes effect from the 

date of its passage bv relation. The duties to be performed by the speakers in signing the stat¬ 
utes is not of a legislative, but ministerial character. And to cause the operation of a law to 
depend upon the period of lime when this duty was performed, would introduce too great uncer¬ 
tainty in the administration of justice, as there would be nothing but the memory of man to 
resort to for the purpose of ascertaining it, the signature not being dated and there being no 
record of the time kept.” 

Note to This Case—” Statutes take effect upon the most remote and secluded portions of the 
State from the time of their passage, not allowing a single moment for gaining intelligence of 
their passage, a principle of law destitute of every semblance of reason and fraught with hard¬ 
ship and severity. It is not quite so bad, however, as the old English rule, by which, if no period 
was fixed by the statute itself, it took effect, by relation, from the first day of the session in whieh 
the act was’passed. This rule was abolished by an act of 33 George III. 1793, by which statutes 
are to have effect only from the time they receive the royal assent. The settled principle of 
American law is declared by Marshall, C. J., in Matthews, v Jane, 5 Cond., 270, to be, ‘ that a stat¬ 
ute for the commencement of which no time is fixed, commences from its date; ’ the constitu¬ 
tional prohibition of ex post facto and retrospective laws having annulled the ancient rule of the 
common law. The statutes of the United States take effect from the day of their approval by the 
president, that being the day of their date. The same rule, of course, applies to the statutes of 
those States in which the executive is so far a branch of the legislative department as that his 
concurrence in its acts are necessary to their perfection. But in those States where bills which 
have passed the houses become law’s when signed by the speakers, and not until then, it would 
seem to be giving thtm a retroactive effect, to make them relate to the day of their passing the 
houses In New York every law, unless a different time be prescribed therein, takes effect 
throughout the State on, and not before, the 20th day after its final passage. I Kent’s Com., 454, 
3d ed This or some similar rule, ought to be adopted in every State in the Union. See 1 Galli- 
son 62 case of the Brig. Ann ; 1 Kent’s Com., 454, 3d ed.; Dwarris on Statutes, 682, et seq.” 


20 



306 


TENNESSEE CONSTITUTIONAL LAW. 


Description of Act in Journal Entries—Conference Committee — Con¬ 
struction of Report—When Statute Takes Effect. —The question here 
was the validity of the Act of February 8, 1870, ch. 55, passed when the 
Constitution of 1834 was in force. The sections of that instrument 
construed were art. 2, secs. 17, 18, and 21. L. Lehman, Sp. J., held: 
“It is not essential to the validity of a statute that it should be 
described in the journal entries recording its passage by setting out its 
title in ipsissimis verbis. Discrepancies between such journal entries 
and the title of act are treated as mere abbreviations or omissions, 
which are supplied by presumption or disregarded as immaterial. . . . 
A discrepancy between the act as passed and the journal entries record¬ 
ing its passage, as to the number of sections contained in the act, does 
not affect its validity. This is not a material matter, but, if it were, the 
act and not the recital of the journal entries would be conclusively pre¬ 
sumed to speak the truth. ‘ . . . A bill having been passed regularly 

by both houses was referred, upon a difference between the two houses 
as to certain proposed amendments, to a joint committee of conference. 
This committee reported as follows: ‘Your committee of conference, to 
whom was referred Senate Bill No. 10, with house amendments, beg 
leave to report the accompanying bill in lieu of said bill and amend¬ 
ments, in which is embraced substantially all the provisions of both 
houses. Your committee deem it prudent to propose a bill in lieu, as 
the original bill has been much disfigured by amendments, interlinea¬ 
tions, and erasures. Your committee ask that the bill offered be 
accepted and passed.’ This re-drafted bill of the committee of confer¬ 
ence contained fewer sections and omitted some of the proposed 
amendments — the committee substituting compromise provisions there¬ 
for. The committee’s report was concurred in by the houses, and the 
bill signed. The bill was not passed after its re-drafting by the com¬ 
mittee. . . . When a bill is signed by the speakers of the two 
houses, it then takes effect by relation as of date of its passage. 1 It is 
not required that a bill shall be enrolled before its signing, and there¬ 
fore the recital of the date of its enrollment on the journals affords no 
evidence that the bill has not been signed at that date.” Judge Turney 
dissented. 91,526. Nelson v. Haywood County. 1892. 

Bills Containing Same Substance , Etc. 

Passage of Laws at Extra Session Previously Rejected at Regular 
Session—Meaning of “Session.”— The act considered was that of 1890 
(extra session), ch. 33. Caldwell, J.: “The act assailed was passed 
at an extra session. A bill, in substance the same, had been passed by 
the house of representatives and rejected by the senate at the regular 
session. Therefore it is alleged in the bill, and insisted in argument, that 


1 See Dyer v. The State in note to Hill v. The State, preceding page. 



BILLS —HOW PASSED—WHEN TAKE EFFECT. 


307 


it was not a competent subject for legislation at the extra session, though 
embraced iu the governor’s proclamation for an extra session as required 
by sec. 9 of art. 3, of the Constitution. The position is that the power 
of that general assembly—that particular body of representatives and 
senators—to legislate upon that subject was exhausted by the action 
taken at the regular session, and that the proclamation of the governor 
could not restore that power. If it be true, as assumed, that the general 
assembly exhausts its constitutional power of legislation on a given sub¬ 
ject for the full term of two years, by the rejection of a bill at the reg¬ 
ular session, theu it is manifest that the governor can not revive that 
power, and make it effective for an extra session; but that legislative 
power may be exhausted in that way, and to that extent, we do not 
admit. The language of the Constitution applicable to the case is as 
follows: ‘After a bill has been rejected, no bill containing the same sub- 
stauce shall be passed into a law during the same session .’ Art. 2, sec. 
19. ‘Session,’ as here used, means a particular sitting of the general 
assembly; as, a regular sitting for the transaction of general legislative 
business, or an extra sitting for the transaction of special legislative 
business named in the governor’s proclamation. It is the space of time 
between the first meeting and the final adjournment of each particular 
sitting or term. 

“The Constitution virtually so defines the word. It provides for 
different sittings, and calls each of them a ‘session.’ ‘But no member 
shall be paid for more than seventy-five days of a regular session , or 
for more than twenty days of an extra or called session ,’ etc. Art. 2, 
sec. 23.” 89,488. 1 Williams v. Nashville. 1891. 

Art. 2, Sec. 22. The doors of each house and of commit¬ 
tees of the whole shall be kept open, unless when business shall 
be such as ought to be kept secret. [ Same as Const. 1834, art. 2, see. 

22; Const. 1796, art. 1, sec. 19.J 

Art. 2, Sec. 23. The sum of four dollars per day, and four 
dollars for every twenty-five miles traveling to and from the seat 
of government, shall be allowed to the members of each general 
assembly elected after the ratification of this Constitution, as a 
compensation for their services. But no member shall be paid 
for more than seventy-five days of a regular session, or for more 
than twenty days of any extra or called session; or for any day 
when absent from his seat in the legislature unless physically 
unable to attend. The senators, when sitting as a court of im¬ 
peachment, shall each receive four dollars per day of actual 
attendance. 1 2 

[Const. 1834, art. 2, sec. 23. “ The sum of four dollars per day. and four 
dollars for everv twentv-five miles traveling to and from the seat of govern¬ 
ment, shall be allowed io the members ol the first general assembly as a com¬ 
pensation for their services; the compensation of the members of the suc¬ 
ceeding legislature shall be ascertained bylaw; but no law increasing the 
compensation of the members shall take effect until the commencement of 
the next regular session after such law shall have been enacted.”] 

[Const. 1796, art. 1, sec. 20. ‘‘The legislature of this State shall not 
allow the following officers of government greater annual salaries than as 


1 See same case, art. 1, sec. 8, p. 63; art. 2, sec. 2, p. 255; art. 11, sec. 8. 

2 See Williams v. Nashville. 



308 


TENNESSEE CONSTITUTIONAL LAW. 


follows: Until the year one thousand eight hundred and four, to wit: the 
governor not more than $750, the judges of the Supreme courts not more 
than $600 each, the secretary not more than $400, the treasurer or treasurers 
not more than four per cent for receiving and paying out all moneys, the 
attorney or attorneys for the State shall receive a compensation for their 
services not exceeding $50 for each Superior court which he shall attend. No 
member of the legislature shall receive more than $1.75 per day, nor more for 
every twenty-five miles he shall travel in going to and returning from the 
general assembly.”] 


Art. 2, Sec. 24. (No money shall be drawn from the treas¬ 
ury but in consequence of appropriations made by law); and an 
accurate statement of the receipts and expenditures of the pub¬ 
lic money shall be attached to and published with the laws at the 
rise of each stated session of the general assembly. [Same as 
Const. 1834, art. 2, sec. 24. Const. 1796, art. 1, sec. 21, had only words in paren¬ 
thesis.] 


Art. 2, Sec. 25. No person who heretofore hath been, or 
may hereafter be, a collector or holder of public moneys, shall 
have a seat in either house of the general assembly, or hold any 
other office under the State government until such person shall 
have accounted for and paid into the treasury all sums for which 
he may be accountable or liable. 1 [Same as Const. 1834, art. 2, sec. 25. 
Const. 1796, art. 1, sec 22, did not contain the words, “or hold any other office 
under the State government,” but was otherwise the same.] 

Art. 2, Sec. 26. No judge of any court of law or equity, 
secretary of State, attorney-general, register, clerk of any court 
of record, or person holding any office under the authority of the 
United States, shall have a seat in the general assembly, nor 
shall any person in this State hold more than one lucrative office 
at the same time; Provided, That no appointment in the militia 
or to the office of justice of the peace shall be considered a lucra¬ 
tive office (or operate as a disqualification to a seat in either 
house of the general assembly). [Same as Const. 1834, art. 2, sec. 26. 
Const. 1796, art. 1, sec. 23, did not contain words in parenthesis, but was oth¬ 
erwise the same.] , 

Art. 2, Sec. 27. Any member of either house of the general 
assembly shall have liberty to dissent from and protest against 
any act or resolve which he may think injurious to the public or 
to any individual, and to have the reasons for his dissent entered 

on the journals. [Same as Const. 1834, art. 2, sec. 27; Const. 1796, art. 1, 
sec. 25.] 


1 See 71, 180, and T. & S. 748. 



TAXATION BY THE STATE. 


309 


TAXATION BY THE STATE. 


Law in General. 

PAGE. 

Power of Taxation in Legislature.316, 324 

Delegation of Taxing Power. 332 

Power of Taxation Impliedly Reserved in 

All Grants of Realty.310 

Enforcing Payment of Taxes by Penalty... 311 

Interpretation of this Section of Constitu¬ 
tion of 1834 Recognized by Conven¬ 
tion of 1870. 324 

Tax on Corporate Property and Shares of 

Stoclc Not Double Taxation. 321 

Constitutional Provisions that Need no 
Legislation to Give Them Effect 
and Those that Do, Distinguished.. 330 

Exemptions. 


Of Educational Institutions. 311 

Of Charitable and Religious Institutions— 

Secular Use of Property. 311 

Of 31,000 VVorth of Property. 312 

Exemptions Withdrawn by this Provision. 


See Art. 11, Sec. 8, The State v. Plan¬ 
ters’ Insurance Co. 

Lands of United States Acquired Under 
Tax Sale Not Exempt from Taxa¬ 
tion by the State While so Held. See 
Art. 11, Sec. 8, Anderson v. Van 
Brocklin. 

National Bank Stock—Exemption by State. 316 

Exemption Clause in Charter of Railroad 

Corporation. 320 

Back Assessment—Exemption from Taxa¬ 
tion for Niuety-nine Years Into 
Whose Hands Soever Property may 
Pass. See Art. 1, Sec. 20. The State 
ex rel. Games v. Whitworth . 191 

Charter Exemption of Turnpike Compa¬ 
nies—Privilege Tax on Toll Gates.. 329 

Realty and Personalty—According to 


Value — Equal and Uniform. 

Limitations and Restrictions of this Power. 312 

Taxation and Local Assessment Defined— 

Limitations and Restrictions. 312 

Value at Time of Assessment.312 

Same—Banks and Bank Stock. 

Capital Stock—Stock of Stockholder—Dif¬ 
ference— Residents and Non-resi¬ 
dents . 314 

Equal Taxation — National Bank Stock — 

Power of Taxation in State. 316 

Taxing Shares of Bank Stock—No Exemp¬ 
tion Under Present Constitution. 


See Art. 11, Sec. 8, Memphis v. Mem¬ 
phis City Bank. 

Same—Railroads. 

Charter Exemptions of Railroad Corpora¬ 
tions—This Clause Construed. See 
Art. 11, Sec. 8, Railroad v. Hicks. 

Taxation of Corporations Exempt by 

Charter, by Amending Charter. 318 


Same—Railroads. 

PAGE. 

Assessing Railroad Property at Aggregate 
Valuation—Assessment Act of 1875, 

Void. 319 

Railroad Assessment Act of 1877, Part Void. 320 
Telegraph Lines Taxable as Railroads. 321 


Privileges. 

Privilege Defined.323,324, 326 

Privilege is of Legislative Creation.322 

Sense in Which this Term is Used in Con¬ 
stitution.321, 325 

This Clause Considered in Connection with 

Art. 11, Sec. 8. 326 

Privileges and Property Distinguished. See 
Art. 2, Sec. 29, Adams v. Somerville. 

Privilege Valid, Though Unequal. 326 

Privilege of Standing Jacks and Stal¬ 
lions .321, 322 

Wholesale Grocers or Merchants Liable for 

this Tax. 323 

Merchants’ Tax—License Not a Contract... 326 
Wine Dealers—Privilege Tax—Who Liable 
For. See Art. 2, Sec. 30, Kurth v. 

The State. 

Liquor Dealers’ Privilege Tax — Druggists’ 
Relief Act of 1887 — Privileges and 
Property Tax. See Art. 11, Sec. 8, 
Demoville v. Davidson County. 

Privilege Tax on Merchants for Selling 
Articles Manufactured in this State. 

See Art. 2, Sec. 30, The State v. Craw¬ 
ford, McNeil ifc Co. 


Lawyers’ Privilege Tax, Void. 327 

Sleeping Cars. 328 

Turnpikes—Privilege Tax on Toll Gates, 

Valid. 329 

Right of Inheritance—Privilege Tax on, 

Valid—Acts of 1893 . 329 

Non-Residents. 

Non-resident Clause Defined. 329 

Capital Employed in Purchase of Goods 
Sold to'Nou-residents —History of 

this Clause.330 

Non-resident Bondholders Not Taxable_330 

Interstate Commerce—What is Not Taxa¬ 
tion of.331 


Privilege Tax on Residents and Non-resi¬ 
dents—Interstate Commerce. See 
Art. 2, Sec. 30, Howe Machine Co. v. 
Cage. 

Poll Tax on Alien Inhabitant —Taxing 
Privilege of Exercising Elective 
Franchise. See Art. 4, Sec. 1, Kuntz 
v. Davidson County. 


Municipal Corporations — Delegation of 
Taxing Power. 

Power Under this Section of Constitution 

of 1834 . 332 

Power to Assess Poll Tax for Corporation 

Purpose.333 

Power to Tax Mercantile Privileges. See 
Art. 2, Sec. 29, Nashville v. Althrop. 




































310 


TENNESSEE CONSTITUTIONAL LAW. 


Art. 2, Sec. 28. All property, real, personal, or mixed, shall 
be taxed, but the legislature may except such as may be held by 
the State, by counties, cities, or towns, and used exclusively for 
public or corporation purposes and such as may be held and used 
for purposes purely religious, charitable, scientific, literary, or 
educational, and shall except $1,000 worth of personal property 
in the hands of each taxpayer, and the direct products of the soil 
in the hands of the producer and his immediate vendee. All 
property shall be taxed according to its value, that value to be 
ascertained in such manner as the legislature shall direct, so that 
taxes shall be equal and uniform throughout the State. No one 
species of property from which a tax may be collected shall be 
taxed higher than any other species of property of the same value. 
But the legislature shall have power to tax merchants, peddlers, 
and privileges in such manner as they may from time to time 
direct. The portion of a merchant’s capital used in the pur¬ 
chase of merchandise sold by him to non-residents and sent 
beyond the State, shall not be taxed at a rate higher than the 
ad valorem tax on property. The legislature shall have the 
power to levy a tax upon incomes derived from stocks and bonds 
that are not taxed ad valorem. All male citizens of this State, 
over the age of twenty-one years, except such persons as maybe 
exempted by law on account of age or other infirmity, shall be 
liable to a poll tax of not less than fifty cents nor more than one 
dollar per annum. Nor shall any county or corporation levy a 
poll tax exceeding the amount levied by the State. 1 

[Const. 1834, art. 2, sec. 28. “All lands liable to taxation, held by deed, 
grant, or entry, town lots, bank stock, slaves between the ages of twelve and 
fifty years, and such other property as the legislature may from time to time 
deem expedient, shall be taxable. All property shall be taxed according to 
its value, that value to be ascertained in such manner as the legislature shall 
direct, so that the same shall be equal and uniform throughout the State. 
No one species of property from which a tax may be collected shall be taxed 
higher than any other species of property of equal value; but the legislature 
shall have power to tax merchants, peddlers and privileges in such manner 
as they may from time to time direct. A tax on white polls shall be laid in 
such manner and of such an amount as may be prescribed by law.”] 

[Const. 1796, art. 1, sec. 26. “All lands liable to taxation in this State 
held by deed, grant or entry, shall be taxed equal and uniform, in such 
manner that no one hundred acres shall be taxed higher than another, 
except town lots, which shall not be taxed higher than two hundred acres of 
land each. No freeman shall be taxed higher than one hundred acres, and 
no slave higher than two hundred acres on each poll.”] 


Power to Impose and Collect Taxes. 

Power of Taxation Impliedly Reserved in All Grants of Realty.— 
Turney, J. : “Taxes are an incident to eminent domain, or ultimate 
dominion of the State over the subject of property. The power of tax¬ 
ation is impliedly reserved in all grants of realty, and expressly dele¬ 
gated by the Constitution. The right of the State to collect taxes fol¬ 
lows real property inherently into whosesoever hands it may go; no 
judgment or attachment can have priority over it. When land is sold 
by constraint of law, as in this case, the purchaser becomes a debtor to 
the sovereign for the taxes; that is, he takes the property thus encum¬ 
bered, and while he may collect of the party, as whose property the 
land was sold, he can not abate the price agreed to be paid for the ben¬ 
efit of creditors by unpaid taxes.” 56, 585. Staunton v. Harris. 1872. 

1 For indirect or unimportant references to this section, see 32, 357 ; 82, 45; 85, 451; 87 , 234; 



TAXATION BY THE STATE. 


311 


Enforcing Payment of Taxes by Penalty. — NICHOLSON, J.: “The 
power to annex penalties for the enforcement of the taxes assessed is 
necessarily involved in the power to collect and impose taxes for public 
purposes. Without taxes government can not exist. Hence, the power 
to tax is a necessity for self-preservation. But the power to impose 
taxes without the power to insure their prompt collection would leave 
the government liable to be embarrassed in its operations by the delin¬ 
quencies of tax payers. It follows that the legislature must have the 
discretion as to the mode of insuring prompt collections; this is as 
much a necessity as the power to tax. A penalty annexed to the failure 
to pay may be properly adopted, both as a means of inducing tax payers 
to be prompt and as a means of protecting the State against loss by such 
failure to be prompt in payment. 

“But it is said the Constitution requires taxes to be so imposed that 
they shall be equal and uniform throughout the State; and that this 
provision is violated by annexing a penalty, whereby some pay more 
taxes than others on property of the same value. The taxes imposed 
are equal and uniform, as required, and the amounts required to be paid 
are uniform, as near as such a thing is practicable. Every tax payer 
has the right to discharge his liability to the State by paying the amount 
assessed. If he fails to discharge his duty as prescribed by law, he 
thereby incurs the penalty, the additional amount he has to pay is not 
an additional tax imposed upon his property, but an amount imposed as 
a punishment for failure to discharge his duty as a taxpayer. He does 
not pay more than his neighbor, who has been prompt, because he was 
taxed more than that neighbor, but because he has violated his duty. 
The taxes imposed are equal and uniform, notwithstanding some may 
incur the penalty, and thereby pay more than others.” 55, 563. x Myers 
v. Park. 1875. 

Exemptions. 

Of Educational Institution. — DEADERICK, J., held: “ So much of the 
Act of February 3, 1869, as undertook to exempt property of Ward from 
taxation is unconstitutional. The Act of 1882 exempted from taxation 
property used for purposes purely educational, and included property 
belonging to private persons used for educational purposes. But the 
Act of 1883 exempted from taxation property belonging to incorporated 
institutions of learning, and not property belonging to private individ¬ 
uals, though used for educational purposes.” 1 84, 27. Mayor etc. of 
Nashville v. Ward. 1885. 

Charitable and Religious Purposes—Secular Use of Property.— 
Wilkes, J., held: “The personal property of an incorporated publish¬ 
ing house, used in conducting its business, is exempt from ad valorem 


1 See same case, art. 1, sec. 8, p. 56. 



312 


TENNESSEE CONSTITUTIONAL LAW. 


taxation under our Constitution and statutes exempting from taxation 
property held and used for purposes 1 purely 7 or ‘exclusively 7 religious, 
charitable, scientific, literary, or educational, where the corporation was 
placed by its charter under complete control of an unincorporated relig¬ 
ious society or denomination, whose discipline provided that the entire 
net income arising from the business of the corporation, consisting 
mainly of the publication and distribution of religious literature, should 
be applied exclusively to the benefit of the traveling, supernumerary, 
superannuated, and worn-out preachers of such religious denomination, 
their wives, widows, and children. . . . But this exemption does 

not attach to property not separable in its use, e. g., the outfit of a pub¬ 
lishing house, if it has been diverted to secular purposes to any material 
extent, e. g. } the one-fifty-sixth part of its use. . . . But this exemp¬ 

tion is not defeated by the use of the property, viz.: The outfit of the 
publishing house, in printing in part secular books, etc., if the entire 
net proceeds of the business is applied to the religious and charitable 
purposes provided in the charter and discipline.” Judge Snodgrass 
dissented. 92, 188. M. E. Church South v. Hinton. 1893. 

Exemption of $1,000.— The act under consideration was that of 
1891 (ex. ses.), ch. 26, sec. 1, sub-sec. 6. Caldwell, J., held: “Each 
citizen, whether a married woman or other person, owning taxable per¬ 
sonal property is entitled to exemption out of same to the extent of 
$1,000 from State, county and municipal taxation.” 93, 210. Bank v. 
Morristown. 1893. 

Bealty and Personalty— u According to Value”— u Equal and Uniform.” 

Determining Value—Limitations and Restrictions. — CARUTHERS, J., 
held: “By the Constitution, art. 2, secs. 28, 29, all property shall be 
taxed according to its value. There are no other limitations or restric¬ 
tions in the Constitution upon the power of the legislature. ... All 
property should be assessed at its fair value, to be determined by the 
ordinary selling and buying prices for cash at the time the assessment 
takes effect. To place it any lower than this standard is a palpable 
dereliction of duty by the assessors and an infringement upon their 
oath.” 2 40, 696. Brown v. Green. 1859. 

“Taxation” — “Local Assessment” — Meaning of These Terms.— 
In this case Freeman, J., discusses at length several decisions of other 
courts, and many eminent authorities, and says: “We proceed to 
examine the proposition thus maintained, and the one most relied on 
by counsel for complainant. He insists that taxation applies, as in the 


x Acts 1889, ch. 96, sec. 2, sub-sec. 2. 

2 Code 1858, sec. 563, sub-sec. 3, relating to taxation of slaves. 



TAXATION BY THE STATE. 


313 


cases cited, and many others not cited, alone to revenues to be col¬ 
lected from the people for general and ordinary purposes of govern¬ 
ment, and this form of taxation is subject to the restrictions contained 
in sec. 28, art. 2, of our Constitution; but that, on the contrary, taxation 
in the form of local assessment , is not thus regulated and restricted, 
and is equally lawful and constitutional, or within the province of the 
legislature to authorize. This last mode of taxation, he concedes, is 
subject to some necessary limitations, one of which is, it must be appor¬ 
tioned. If, however, the Constitution does not regulate this mode of 
taxatiou, either by express limitation or by fair implication, from its 
general provisions, it is difficult to see where a State legislature would 
find the limitations that would operate as a restraint upon a body which, 
it is maintained, is as omnipotent as the British parliament in all mat¬ 
ters legitimately legislative, that is in all matters involving law-makiug, 
and the regulation of the future conduct aud rights of the citizen. 

“However, we proceed to examine the question thus presented. We 
assume as sound the principle laid down by Chief Justice Ramsey in the 
case cited above, which is substantially that the Constitution inteuded 
to provide, in art. 2, sec. 28, for regulation and limitation upon the 
powers of the government of the State in the collection of taxes from 
the people, and that this mode thus provided being sufficient for all the 
purposes of government, that if the Constitution contains nothing more 
on the subject, ‘any other mode of levying taxes for any purpose was 
necessarily excluded’—the clear expression of one thing excluding 
another. As to taxation for State purposes, we take it that it will be 
conceded that all taxation, fastened upon the people by the legislature, 
must, of necessity, be governed by this clause of our Constitution. We 
ask why such must be the rule? The answer must be, that it can not 
be presumed that the convention, in fixing these regulations and limita¬ 
tions upon the taxing power, iutended only to regulate one-half of it, so 
to speak, aud leave another portion, that might be rendered equally 
burdensome upon the people, without restriction or limitation, to be 
exercised at the will of the legislature. They have provided regula¬ 
tions, and fixed the limitations upon the mode of exercising the taxing 
power, and it must be that unless they had expressed otherwise, the 
whole subject is included. They have said l all property shall be taxed 
according to its value.’ This excludes the power of taxing on any other 
principle for State purposes. 

“But on the theory of the argument iu favor of the proposition sus¬ 
taining this tax now uuder discussion, why may not the principle of 
local assessment be applied to raising revenue for many of the burdens 
that now rest on the State? Much of the debt of the State was incurred 
for aid to the several railroads and turnpikes of the State. Why not 
adopt the mode of local assessment on the people of the counties 


314 


TENNESSEE CONSTITUTIONAL LAW. 


through which these roads run, and apportion the burden on the people 
most benefited? If the Constitution only regulates taxation when 
applied to raising revenue for the general purposes of government, why 
may not the limitations upon the exercise of the taxing power be 
avoided at any time?—for all the class of cases referred to (and perhaps 
others), that may well be denominated local improvements by simply 
changing the mode of laying the burden on the people, and calling it by 
the name of 1 local assessment / and then we have but to apply the one 
mode to the one class, and the constitutional mode to the other class, to 
find the government raising revenue from the people in the one case in 
a mode subject to no limitation whatever, and in the other regulated by 
the Constitution , and that for precisely the same character of purposes. 
In other words, that the power of taxation is only subject to the Consti¬ 
tution when the legislature choose that it shall be.” 56 , 365. 1 Taylor , 

McBean & Co. v. Chandler et al. 1872. 

Value at Time of Assessment.— The Act of March 27, 1883, which 
conferred upon the Chancery court power to reduce taxes assessed in 
Memphis before the charter of that city was repealed “when it shall 
appear that such assessments are excessive in view of the present value 
of said property,” was declared unconstitutional in this case. Deader- 
ick, J., said: “Our Constitution requires all property to be taxed accord¬ 
ing to its value, that value to be ascertained in such manner as the leg¬ 
islature may direct, so that taxes shall be equal and uniform throughout 
the State. Undoubtedly these fundamental principles of taxation are 
intended to apply to the time at which such taxes are assessed, so that 
the property taxed shall be so taxed at this value at the time at which 
the tax is imposed; and also the equality and uniformity of taxation 
required are equality and uniformity with taxes on property of like 
character imposed at or about the same time. Nor do these require¬ 
ments present any impediment to providing agencies to reduce assess¬ 
ments which were, at the time they were imposed, excessive and unequal. 
But it is not competent for the legislature to prescribe a rule for the 
reduction of assessments which will violate the manifest object of the 
fundamental law. That object is that the property must be taxed at its 
value at the time the tax is imposed.” 79 , 413. State for use etc. v. 
Butler et al. 1883. 


Same—Banks and Bank Stock. 

Capital Stock — Stock of Stockholders — Difference — Residents and 
Non-Residents.— Green, J. : “Was it the intention of the framers of the 
Constitution and the legislature of 1836 to impose additional taxation on 
those corporate institutions which had previously been brought into 


1 See same case, art. 2, sec. 29. 



TAXATION BY THE STATE. 


315 


existence, and which had contracted to pay a consideration for the privi¬ 
leges which had been granted them? We are clearly of opinion that 
they did not. The twenty-eighth section of the second article of the 
Constitution, which is the one under consideration, in enumerating the 
different kinds of property which shall be made liable to taxation, men¬ 
tions bank stock, but not the capital stock of the bank. It can scarcely 
be necessary to say that by bank stock is meant individual interest in 
the dividends as they are declared, and a right to a pro rata distribution 
of the effects of the bank on hand at the expiration of the charter, and 
that the capital stock of the bank is the whole undivided fund paid in 
by the stockholders, the legal right to which is vested in the corporation 
to be used and managed in trust for the benefit of the members. This 
clause of our Constitution does not direct that the capital stock of any 
corporation shall he taxed, but has left it to the discretion of the legis¬ 
lature. This brings us to an examination of the Act of 1836, chs. 13,14, 
which, it has been contended, does tax the capital stock of the Union 
Bank of Tennessee. The first section of chapter 13, in enumerating the 
different kinds of property which shall be liable to taxation, mentions 
bank stock other than such as may be exempted from taxation as there¬ 
inafter provided for, and subjects it, in common with every other 
description of property, to an assessment of five cents on every oue 
hundred dollars. The capital stock of a bank is not here enumerated, 
and the second section of the same statute shows conclusively that the 
legislature had a very distinct conception of the difference between 
bank stock and the capital stock of the bank, for it provides, among 
other things, ‘that all stocks owned by the State, or by literary, relig¬ 
ious, or charitable institutions, and all capital stock of all such incor¬ 
porated companies as had theretofore been, or might thereafter be, 
exempted from taxation in their respective charters of incorporation, 
shall be exempted from the payment of every State, county, or other 
tax. Not satisfied with not having taxed the capital stock of the banks 
in the first section of the statute, it seems that, out of an abundance of 
caution, they expressly exempt it therefrom by the second section, pro¬ 
vided it be exempted in their charters of incorporation. 

“Manifestly the framer of this statute must have had in his mind, 
when he drew this section, the rights of those corporate institutions 
which had previously contracted with the State to pay one-half of one 
per cent on their capital stock as a consideration for the privileges 
granted them, and believed it to amount to an exemption from tax¬ 
ation. The fifth section of the Act of 1836, ch. 14, after providing that 
all property taxable by law shall be given in to commissioners at its 
cash value, further provides that the revenue arising on bank stock 
shall be collected from the bank on the amount of stock paid iuto the 
vaults by the several stockholders in said bank or banks, and it shall be 


316 


TENNESSEE CONSTITUTIONAL LAW. 


the duty of the cashier to list the amount of stock owned in his or 
their bank by the several individual stockholders. Was it intended by 
this section to tax the capital stock of the bank? Surely not. The 
subject-matter, again, is bank stock, and not the capital stock of the 
bank. If it had been intended to tax the bank, why require the cashier 
to list the amount of stock owned by the several individual stockholders? 
A mere statement of the capital stock paid in would have been amply 
sufficient for the purpose of ascertaining the amount of revenue to be 
raised therefrom, and might have avoided some perplexity and trouble. 
If a tax on the bank was meant by this section, why wish to know who 
the stockholders were? The knowledge could furnish no additional 
facility in collecting the revenue from the bank. 

“ We are satisfied that a tax upon the bank was not intended, but 
that an individual tax on the owners of the stock of the bank was; 
that the legislature believed that they had the power to tax all the 
stock as well as that owned by non-residents as by our own citizens, 
and that they could compel the bank to pay the tax out of the dividends 
semi-annually declared, without which the tax intended to be laid on 
non-resident stockholders could not be collected. This brings us to the 
third and last inquiry, which is, how far the provisions of this fifth sec¬ 
tion of the Act of 1836, ch. 14, can be enforced against the owners of 
bank stocks of this State. It is not contended that the State does not 
possess the power to tax resident holders of bank stock, or stocks of 
any other description, but, to do this constitutionally it must be given in, 
like other property, at its cash value, not what it might have originally 
cost, for stocks fluctuate in value like all other property, and what cost 
one hundred dollars today may not tomorrow be worth fifty. . . . 

The fifth section of the Act of 1836, ch. 14, on which we are comment¬ 
ing, makes provision for the listing of every species of property for 
taxation, except bank stock, at its cash valuation. But bank stock is 
to be estimated at what was given for it originally at bank, to wit: in 
the case of owners of stock in the Union Bank at one hundred dollars 
a share. This, we think, is in violation of” (this section); “ it may and will 
produce inequality. Bank stock is scarcely ever at par, it being gen¬ 
erally above or below, and, unless it be given in for taxation at its real 
cash value, one species of property will be taxed higher than another 
species of equal value.” 1 17, 499. Union Bank v. The State. 1836. 

Equal Taxation—Exemptions by State—National Bank Stock—Power 
of Taxation in state.—M cFarland, J., held: “The proviso of the Act 
of Congress of Feb. 10, 1868, that the taxation upon the shares of 
national banks shall not be at a greater rate than is assessed upon other 
moneyed capital in the hands of individual citizens, does not prevent a 

1 What the court said with reference to taxation of non-resident stockholders was overruled 
by Nashville v. Thomas, art. 2, sec. 29, and is here omitted. 



TAXATION BY THE STATE. 


317 


State which exempts from taxation certain forms of moneyed capital, 
from taxiug shares of stock in national banks.” 

In discussing the question, he said: “The Constitution of this State 
in force at the time these acts were passed, provided: (quoting second 
and third clauses). Yet it has never been held that this provision was 
violated by the exemptions in question, or others of a like character. 
When the right of the legislature is conceded to make exemptions, it 
would seem that that body must be the judge of the policy or propriety 
of the exemptions made. We do not say, however, that these might 
not be carried to a point beyond this power. What, however, would be 
the result should the legislature see proper to exempt property from 
taxation in violation of the spirit of the Constitution above quoted, we 
do not say. Would it result that all the tax imposed by the act upon 
other property would therefore be illegal, and not susceptible of col¬ 
lection? This would be to give an unusual effect to an unconstitu¬ 
tional law; that because certain property is improperly exempted, there¬ 
fore no tax can be collected from other property that is properly taxed. 
Would not a more reasonable view be that the part of the law providing 
for the improper exemption should be declared void ? 

“If the argument be sound that the exemption of these bonds was 
a violation of the condition in the act of congress upon which the right 
to tax national bank stock is founded, it would seem to follow that the 
exemption is also in violation of that part of our State Constitution 
above quoted, requiring equal taxation; and if this be true, then it 
would result that the exemption was in violation of the Constitution, 
and should have been disregarded altogether. And this would certainly 
be more rational than to defeat the entire tax law because of the fact 
that a part of it is unconstitutional. 

“We are of opinion that the true construction of this act of congress 
is that the State legislatures shall not have power to tax the national 
bank stocks at a higher rate than is imposed upon the moneyed capital 
in the hands of its individual citizens by the general tax law, but that 
this does not prohibit the State from making such exemptions as its 
civil policy may demand, within the power of its own Constitution ; for 
the act of cougress was certainly enacted with regard to this power of 
the State legislatures.” 54, 389. 1 McLaughlin v. Chadwell ColVr et 
ah 1872. 

Doctrines Previously Announced Reaffirmed.— -Iu this case GEORGE 
Gillham, Sp. J., reaffirmed the doctrine that taxation of capital stock 
to the corporation and of the shares of stock to its stockholders is not 
double taxation. Capital stock and shares of stock are separate and 
distinct property interests, and form separate and distinct subjects of 
taxation. 95, 226. 2 The Stale v. Bank of Commerce. 1895. 


1 See same case, art. 2, sec. 29. 


2 See same case, art. 1, sec. 20, p 195; art. 11, sec. 8. 



318 


TENNESSEE CONSTITUTIONAL LAW. 


Same — Railroads. 

Taxation of Corporations Exempt by Charter, by Amending Char¬ 
ter.— McFarland, J.: “The provisions of the first ten sections of the 
Act of March 24, 1875, provide for ascertaining the value, as required 
by the Constitution, to the end that it be taxed according to its value. 
The eleventh section does not purport to ascertain the value, but to 
substitute a fixed tax upon the income, as an amendment to the charter 
for ten years; and a conclusive argument against this being a compliance 
with the Constitution as to equity in taxation is, that the rate fixed, 
one and a half per cent on the gross receipts, is to remain the fixed 
rate, as part of the charter, for ten years, no matter how the rate of 
taxation as to other property may be increased by the public exigencies. 
But it is said this provision is valid as an amendment to the defendant's 
charter, and that the legislature had the undoubted right to provide for 
the amendment of charters, and as it was competent in the original 
grant of the charter to exempt the property from taxation, or to stipu¬ 
late for a fixed sum in lieu of taxation, that the same might be done 
by an amendment; that the power of the legislature in this regard was 
not changed by the Constitution of 1870. How this might be when an 
amendment is granted stipulating for a special tax in consideration of 
some right released by the corporation, it is sufficient in this case to 
say that the eleventh section of the Act of March, 1875, while it pur¬ 
ports to offer an amendment to the charter of the several railroads, 
in reality does no more in respect to roads having or claiming no more 
exemption than to give to them their election as to which of two modes 
of taxation they will submit to. It amends the charter in no other 
respects; it provides for nothing except for the taxation of such com¬ 
panies. As to these railroad companies whose property was exempt 
from taxation, or claimed to be, so that they could not be taxed except 
they voluntarily assent thereto by accepting an amendment to their 
charter upon this consideration, the question would be presented in a 
different aspect, and as to this I express no opinion. But where no 
exemption was claimed it was simply offering to this class of property 
holders the right to elect which of two modes of taxation they would 
adopt, one the mode required by the Constitution, the other entirely 
different; attempting to do indirectly what could not be done directly, 
the eleventh section, as to this class of roads, acquiring no additional 
validity by calling it an amendment to the charter. It is, in reality, 
nothing but a tax law. The fact that this defendant owns other roads 
in the State which are claimed to have been exempt from taxation, and 
which exemption, it was claimed, was relinquished by accepting the 
provisions of the eleventh section, can, I think, make no difference. 
Those other roads were constructed under different charters, and are 
governed by different rights. Accepting an amendment in respect to 


TAXATION BY THE STATE. 


319 


these roads would furnish no sufficient ground to release this property, 
which is admitted to have had no exemption.” 1 67 , 531. Ellis v. L. & N. 
R. R. Co. 1876. 

Assessing All Railroad Property at Aggregate Valuation — Railroad 
Assessment Act of 1875, Void — Opinion Overruled in L. & N. R. R. Co. 
v. The State.— Freeman, J., held: “The meaning of the Constitution, 
art. 2, secs. 28-9 is, that all property must be assessed upon the same 
principle ; all assessments must be made by the same rule; the basis 
of valuation must be uniform, and all property assessed at all must be 
assessed at its real value. By the Act of March 20, 1875, all the prop¬ 
erty of a railroad company, houses and lands, personalty and realty, 
track and rolling stock, goes into a general aggregate valuation, without 
any attempt to fix the value of each piece or species of property. This 
aggregate value is divided by the number of miles in the road, aud the 
value per mile, thus obtained, is multiplied by the number of miles 
lying inside a county or municipal corporation, and this product is the 
amount subject to county or municipal taxation. By the uniform prac¬ 
tice of this State, since the Constitution of 1834, the property of private 
citizens is assessed at so much for each article or species of property— 
personalty and realty are separately assessed. There must not be 
one rule for railroad companies and another for private citizens. The 
assessment of the property of both must be governed by the same 
principle. The act fixes an arbitrary standard of valuation for the 
property of railroad companies different from that by which the prop¬ 
erty of individuals is assessed. It practically prohibits counties and 
municipal corporations from taxing the real property of the company, 
lying inside their limits, as their actual value. This act is unconstitu¬ 
tional and void. . . . The act provides, ‘from the aggregate value 

is to be deducted the real cash value of individual shares. 1 The con¬ 
stitutional mandate that ‘all property shall be taxed, 1 prevents the 
legislature from grauting any exemption whatsoever, no matter what 
the consideration. The grant of the exemption is unconstitutional aud 
void. . . . 

“It is proper to say that in this opinion we have not reasoned or 
concluded in accord with the argument and opinion of Judge Sneed, in 
the case of the Louisville & Nashville Railroad Co. v. The State, 8 Heis., 
663. That opinion is not one by which we feel bound as authority on 
this question, as the court, then consisting of six judges, was equally 
divided on the main question —never agreed on that—aud the opinion 
was only delivered, under provisions of a statute requiring an affiiui- 
ance of the judgment below, on an equal division between the mem¬ 
bers of the court; nor was the question of the mode of assessment so 


1 See Third Tenn. Chc’y Reports, p. 480. 



320 


TENNESSEE CONSTITUTIONAL LAW. 


elaborately discussed in that case before the court — that case having 
arisen in 1874, when we had no such law as that of 1875. This statute 
was afterwards held unconstitutional, 1 and the opinion is, therefore, not 
one legally binding. For this reason, we feel less hesitancy in over¬ 
ruling, or rather disregarding and differing with the reasoning and argu¬ 
ment of the learned judge who delivered that opinion, as we have done 
in this opinion. We are satisfied with the correctness of our conclusions 
on this question, and therefore hold the mode of taxation in the par¬ 
ticulars mentioned, in violation of the Constitution and the law, in the 
matters discussed, void.” 75, 561. 'Mayor etc. of Chattanooga v. N. y 
C. & St. L. B. B. Co. 1881. 

Exemption Clause in Charter — Railroad Assessment Acts — Part 
Valid and Part Invalid.— The Act of 1875, ch. 78, sec. 10, was declared 
unconstitutional in the case of Ellis v. L. & N. R. R. Co., p. 318. And the 
eleventh section of the same act was declared unconstitutional in 
M. & C. R. R. Co. v. Gaines, art. 11, sec. 8. By the Act of 1877, ch. 19, 
the Act of 1875 was amended, and in Mayor etc. of Chattanooga v. N. 
C. & St. L. R. R. Co. supra , this amendment was declared unconstitu¬ 
tional, as was also the provision in the Act of 1875, “directing the tax 
assessors to deduct from the aggregate value of the property of each 
company the cash value of the individual shares of the shareholders. 

. . . That provision was intended to be repealed by the sixth section 

of the Act of 1877.” Another amendment was made by the Acts of 
1877, ch. 19, sec. 13, and by the Acts of 1881, ch. 104, and 1882, ch. 16. 
“The latter act was passed to meet the objection to the Acts of 1875 
and 1877, pointed out by the decision in the case of the City of Chatta¬ 
nooga v. Railroad Company, that they practically prohibited counties 
and municipal corporations from taxing the real property of the com¬ 
pany lying inside their limits at their actual value.” 

Cooper, J.: “The eleventh section of the Act of 1875 has been, as 
we have seen, declared to be unconstitutional and void. So part of the 
exemption or deduction clause of the third section of that act, which 
part was, however, repealed by the Act of 1877. So, of so much of the 
Act of 1877 as prohibited municipal corporations from having the ben¬ 
efit of the value of the property within its limits, the tenth section of 
the Act of 1875 expressly giving to such corporations the benefit of the 
valuation of such property. And the question is, whether the uncon¬ 
stitutionality of these parts of the acts mentioned avoids them in toto ? 
A part of a statute may be unconstitutional and void, and the residue 
valid. Tillman v. Cocke. It is only where the residue is so dependent 
upon and connected with the void part that it cannot be presumed the 
legislature would have passed the one without the other, that the whole 


1 Perkins v. Scales, art. 2, sec. 2, p. 250. 



TAXATION BY THE STATE. 


321 


statute is void. Neely v. State. The eleventh section of the Act of 
1875 was an entirely independent provision from the residue of that 
act, for it simply proposed to exempt from the taxation contemplated 
such companies as would accept an amendment of their charters 
embodying certain conditions. If no company accepted the proposi¬ 
tion, or if the acceptance was invalid by reason of the unconstitution¬ 
ality of the proposition, the residue of the act, which related exclusively 
to the assessment and taxation, would remain in full force. So, the 
exemption or deduction clause might be invalid or be repealed without 
affecting an assessment from which no such deduction was made. And 
the unconstitutionality of the prohibitory clauses of the Act of 1877 
left the unexceptionable provisions of the Act of 1875 in full force. 
The fact, therefore, that these parts of the statutes have been declared 
void would not affect the residue of these acts if valid.” 1 80, 522. 
Franklin County v. N. C. & St. L. R. R. Co. 1883. 

Tax on Corporate Property and Shares of Stock Not Double Taxa¬ 
tion. — The question was the validity of the Act of 1887, ch. 2, sec. 8. 
Lurton, J., held: “ A statute neither imposes double taxation nor vio¬ 
lates the constitutional mandate that ‘all property shall be taxed 
according to value/ which requires corporations to pay tax upon the 
value of their property, and their stockholders also upon the value of 
their shares.” 87, 415. 2 Street R. R. Co. v. Morroiv. 1889. 

Telegraph Lines Taxable as Other Property. — FREEMAN, J., held: 
“Telegraph lines are considered as partaking of the nature of realty, 
in analogy to the new doctrine that raitroads and rolling stock are so 
treated, and consequently under the 3 Act of March 24, 1875, such prop¬ 
erty is held by the court liable to State and county tax.” Judge McFar¬ 
land dissented. 68, 509. W. U. Tel. Co. v. The State and Sumner 
County. 1877. 

Privilege Taxes. 

Privilege — Sense in Which this Term is Used in Art. 11, Sec. 8 — 
Jacks and stallions. —Reese, J.: “As a portion of the taxes due in the 
case before us was from the keepers of stallions and jacks, and the 
exhibitors of shows, it is contended that so much is unconstitutional. 
The Act of 1835, ch. 15, sec. 4, prohibits in general the keeping of those 
animals for profit in the propagation of stock, and the exhibitions of 
shows, but concedes the privilege of doing so to all those who shall 
apply for a license and pay for the privilege the amount specified in the 
act, * The Constitution in express terms confers upon the legislature the 
power to tax privileges. But it is contended that the avocations in 
question are not in themselves, and in their nature, privileges. They 

1 M. & V., 669 et seq. 8 See same case, p. 331; also p. 154. s M. & V., 709. 


21 



322 


TENNESSEE CONSTITUTIONAL LAW. 


are not so, indeed, unless prohibited in general by the law; but, when 
so prohibited, the license or permission to pursue them becomes a privi¬ 
lege, and the subject of the taxing power of the legislature. The 
seveuth section of the eleventh article, which prohibits the legislature 
from granting privileges, immunities, . . . shows the sense in 

which the convention use the term. It is the license or permission, 
upon the specified terms, to do that which in general is prohibited. 
Such license or permission, as has been said, becomes a privilege and 
the subject of taxation. But it is said that to concede to the legislature 
unlimited power to prohibit particular pursuits and avocations in them¬ 
selves indifferent or useful, and then to license them on specified terms, 
and tax the privilege, might make the pursuit of farming itself a sub¬ 
ject of taxation. The danger is somewhat remote of the indiscreet 
exercise of such a power, but, if it were to occur, the corrective would 
have to be applied by the people themselves in the exercise of their 
elective franchise.” 20, 98. Mabry v. Tarver. 1839. 

Standing Jacks—Privilege is of Legislative Creation — Penalties — 
Implied Repeals. — Caruthers, J.: “This was an action of debt, for 
$250, instituted by Attorney General Bridges, in the Circuit court of 
McMinu, in the name of the State of Tennessee, against Elijah Cate, for 
standing a jack for mares, for the year 1853, without taking out a 
license for the privilege, according to the Act of 1835, ch. 13, sec. 4 
(C. & N., 603). The main ground of defense is that the Act of 1835 is 
repealed, by implication, by the Act of 1848, ch. 161, sec. 23. . . . 

In 1835, doubts were entertained as to the power to impose any other 
than an ad valorem tax upon this kind of property; and, regarding it in 
that light, it would fall under the restriction contained in the twenty- 
eighth section of the second article of the Constitution, which prohibits 
any ‘one species of property, from which a tax may be collected/ from 
being ‘ taxed higher than any other species of property of equal value/ 
But, by the next clause, power is given to the legislature ‘to tax mer¬ 
chants, peddlers and privileges, in such manner as they may, from time 
to time, direct.’ This kind of property being generally more productive 
than any other of the same value, it was not thought to be just or equal 
that it should only be subject to an ad valorem tax. To avoid this dif¬ 
ficulty, it became necessary to constitute it a privilege, and to tax it as 
such. A privilege, in this sense, is that which can not be enjoyed with¬ 
out legal authority, which is generally evidenced by license. They are 
of legislative creation, and, when exercised without license or authority, 
are generally visited with penalties upon the offenders. . . . There 

can be no doubt, then, of the liability of the defendant to this penalty, 
unless this law has been repealed, as is contended, by the Act of 1848, 
ch. 161, secs. 23-25, p. 267. There is no express repeal, but it is 
insisted it so operates by implication. If the two acts can not stand 


TAXATION BY THE STATE. 


323 


together, the former must give way to the latter. Such must be the 
effect, if their provisions are inconsistent. But if they can both have 
effect aud are not incompatible with each other, an implied repeal does 
not take place, and we must give operation to both. . . . This act 

does not change the substantial provisions of that of 1835. There may 
be some difference in the amount of the tax, but that cau have no effect 
upon the penalty when nothing is paid, aud the law infringed by failiug 
to obtain license.” 35,121. Cate v. The State. 1855. 

Wholesale Grocers or Merchants Liable for this Tax — Privilege 
Defined—Act of 1851, Ch. 117, Sec. 5.— CARUTHERS, J.: “By the Act 
of 1851-2 the County courts are required to levy a tax on property and 
privileges to meet the interest on any bonds to be issued for stock in 
said railroads. Now, the only question before us is, whether the occu¬ 
pation or trade of wholesale grocers or merchants is a ‘privilege?’ If 
not, it seems to be admitted that there was no power in the County 
court to levy a tax upon them for this purpose. We cannot suppose 
that it was intended by the legislature to exclude them, but still they are 
excluded unless the power is communicated by the act. The Constitution 
. . . designates the subjects of taxation. It embraces all property 

and polls, and prescribes the rules by which the tax shall be levied on 
property. It shall be according to value, and no one species to be taxed 
higher than another; and then provides ‘that the legislature shall have 
power to tax merchants, peddlers and privileges in such manner as they 
may from time to time direct.’ This would seem to indicate that the 
occupations of merchants and peddlers were not embraced by the word 
‘privilege/ But this conclusion does not necessarily follow, and the 
questiou must still depend upon the definition of the term. 

“ The first legislature, after the formation of the Constitution, acted 
upon the idea that auy occupation which was not open to every citizen, 
but could only be exercised by a license from some constituted authority, 
was a privilege. And it is presumed this is a correct definition in this 
application of the term. Several instances of this will be found in the 
Revenue Act of 1835-6, and all subsequent acts on that subject. How 
else could a race track, aud some other objects to be found in those 
acts, be taxed higher thau any other property of the same value? It 
is only upon the idea that, by requiring licenses to be taken out, they 
became ‘ privileges/ According to the Constitution, privileges may cer¬ 
tainly be taxed as such, and not as property; and, as we are authorized 
by repeated legislative recognition to define the word as above stated, 
the only question is, whether the occupation of a ‘wholesale grocer’ 
could be legally exercised without license. If not, and it certainly can 
not, it is a ‘privilege/ and subject to be taxed as such, under the Act of 
1851-2.” 36 , 195. French v. Baker. 1856. 


324 


TENNESSEE CONSTITUTIONAL LAW. 


Statutory and Judicial Interpretation of this Section of the Consti¬ 
tution of 1834 Recognized by the Convention of 1870 — Privilege De¬ 
fined—Legislative Power of Taxation. — NICHOLSON, J.: "It is a principle 
of universal constitutional law that the power to levy and collect taxes 
is an incident of sovereignty. The Constitution of the State does not 
confer upon the legislature the power of taxation; it passes under the 
general designation of ‘legislative power/ There is no limitation upon 
the legislature as to the amount or objects of taxation except that 
found in the restrictions and prohibitions of the Constitution. That 
section of the Constitution in which is found the clause under which 
the tax in question was imposed, first lays down the general prohibition 
that all property, real, personal and mixed, shall be taxed, but gives to 
the legislature a discretion as to taxing property held by the State, by 
counties, cities or towns, etc., and then by way of restriction upon the 
exercise of the power, proceeds as follows: (Quoting second and third 

clauses.) This is an absolute and imperative inhibition upon the 
legislature, requiring them, in taxing property, to provide that it be 
taxed according to value, but expressly excepting from the inhibition 
the manner of ascertaining that value. This much is left to the discre¬ 
tion of the legislature, but this discretion is to be so exercised that no 
one species of property from which a tax is collected shall be taxed 
higher than any other species of property of the same value. So far 
the provision is confined expressly to the taxation of property. Then 
follows the controverted clause: ‘But the legislature shall have power 
to tax merchants, peddlers/ etc. . . . This language would seem at 

first view to confer upon the legislature the power to tax merchants, 
peddlers and privileges. Its true object, however, was to indicate with 
distinctness that the power to tax merchants, peddlers and privileges, 
was not to be understood as inhibited by the restriction as to the tax¬ 
ation of property. Its meaning is, that although in taxing property the 
legislature is forbidden to tax it except according to its value, yet as to 
merchants, peddlers and privileges, the legislature is not to be restricted, 
but may exercise the taxing power without restrictions either as to the 
amount or as to the manner or mode of exercising the power. The 
word ‘but’ is significant of the purpose intended to be accomplished; 
it indicates that what follows is an exception to that which had gone 
before, and is not to be controlled by it. The words ‘in such manner,’ 
used in this clause, have no other significance than to express with 
more distinctness and emphasis that the power of the legislature to tax 
merchants, peddlers and privileges, was unlimited and unrestricted, and 
might be exercised in any manner and mode in their discretion. 

“The first clause has exclusive reference to the taxation of property 
and in doing this the restriction is that it shall be taxed according to 
its value. The second clause has reference to the taxation of mer- 


TAXATION BY THE STATE. 


325 


chants, peddlers and privileges, and in doing this, the discretion of the 
legislature, both as to amount and manner of taxing, is clearly recog¬ 
nized. This clause has no reference whatever to the taxation of prop¬ 
erty—it is confined to the power to tax persons engaged in the business 
of merchandising and peddling, and those enjoying privileges. It is not 
imperative upon the legislature, requiring them to tax these occupa¬ 
tions or persous, but it is left to the legislature to exercise the power 
or not, as in their wisdom sound policy may dictate. . . . It is 

clear, therefore, that from the adoption of the Constitution of 1834, to 
the adoption of that of 1870, the uniform legislation and judicial con¬ 
struction of the clause under consideration has been, that in assessing 
taxes on merchants, the legislature had the power to assess any amount 
at discretion, and in the exercise of this discretion, they could assess a 
specific amount without regard to the amount of capital, or it could be 
graduated according to the amount of capital, and the tax so assessed 
was regarded as a tax on the occupation or privilege, and not upon the 
goods. In view of these well-known historical facts, it is a reasonable pre¬ 
sumption that when the convention of 1870, adopted exactly the same 
language that had been used in the Constitution of 1834, they adopted 
it with a full knowledge of the legislative and judicial construction 
which had been uniformly placed upon the language. But that the con¬ 
vention adopted the construction as well as the language of 1834, is 
placed beyond all controversy by the clause in the Constitution of 1870, 
which follows that under consideration. (Quoting clause 5.) With the 
policy that controlled the convention in adopting either of these clauses 
we have nothing to do. Our duty is to construe what we find in the 
Constitution, and to determine whether the legislature has transcended 
its powers. We find that the Constitution has placed no restriction 
upon the legislature in the exercise of the power to tax merchants, 
peddlers, and privileges, and we are bound to presume that their power 
was thus left unrestricted, under the conviction that the representatives 
of the people would not abuse the power by unjust or oppressive taxa¬ 
tion. Whether this power has been abused or not, in the enactment of 
the statutes under consideration, is not for us to determine. But it is 
our province to determine whether the legislature has transcended its 
constitutional power, and being fully satisfied that they have not, we so 
declare.” 55, 477. Jenkins v. Ewin, Clerk. 1872. 

Sense in Which Privilege Clause Was Retained. — NICHOLSON, J.: 
“The Constitution of 1870 retained the clause as to the taxation of 
privileges, which was found in the Constitution, and we have held, more 
than once, that it is to be presumed that the word ‘privileges’ was 
adopted and retained in the Constitution of 1870, in the seuse in which 
it was used in the Constitution of 1834, as ascertained and settled by 
judicial interpretation.” 55, 547. Wiltze & Pratt v. The State. 1873. 


326 


TENNESSEE CONSTITUTIONAL LAW. 


Merchants’ Tax — License Not a Contract.—MCFARLAND, J., held: 
“ Under the provisions of the Constitution of this State, the legislature 
may classify merchants for purposes of taxation, and tax each class at 
discretion, except that it can not impose a merchant's tax, usually 
denominated a license or privilege tax, higher than the ad valorem tax 
on property on that portion of the merchant’s capital used in the pur¬ 
chase of merchandise sold by him to non-residents and sent beyond the 
State, but may say that the business of a wholesale liquor dealer shall 
be deemed a privilege, not to be exercised without a license, and the 
payment of a special tax, in addition to the other taxes imposed upon 
such dealer as a merchant. . . . If a merchant of one class, paying 

a tax as such, add to the occupation another though kindred business, 
which is additionally taxed, his license as a merchant will not exempt 
him from the payment of the additional tax. ... A merchant’s 
license under our system is not a contract, and the State may change 
the rate of taxation pending the period for which it is issued, and the 
merchant must pay taxes according to the rate fixed by law for any 
given time.” 75,180. Kelly v. Dwyer. 1881. 

This Clause Considered in Connection with Art. 11, Sec. 8—Priv¬ 
ileges Valid Though Unequal. — Nicholson, J., after quoting from Mayor 
etc. of Columbia v. Guest, the definition of the word “privilege,” under 
the law, said: “Such was the fixed judicial interpretation of the word 
‘ privileges’ when the Convention of 1870 adopted exactly the same lan¬ 
guage in forming the present Constitution. It was adopted with a full 
knowledge of the meaning which had been attached to it by the courts. 
This is conclusive as to the present interpretation to be placed on it.” 
The Act of February 24, 1870, ch. 71, sec. 1, constituted the occupation or 
business of taking photographs, etc., a privilege, and Judge Nicholson 
continuing, said: “Under the power to tax privileges in such manner 
as the legislature may from time to time direct, this act is constitu¬ 
tional, unless it is in conflict with art. 11, sec. 8. ... By the plain 

and express language of art. 2, sec. 28, the legislature has the power to 
exercise its discretion as to the mode of taxing privileges. If there is 
a conflict between this section and sec. 8 of art. 11, it is our duty so 
to construe them as to make both sections operative. But the first 
question is, does such conflict exist ? 

“It can not be maintained that the first clause of sec. 8, art. 11, is 
violated by the Act of February 24, 1870, ch. 71, because this act does 
not suspend any general law for the benefit of an individual, nor is it a 
law for the benefit of individuals inconsistent with the general laws. 
But it is insisted that the next clause in sec. 8, art. 11, is inconsistent 
with and restrictive of sec. 28, art. 2, aud, therefore, that the Act of 
February 24, 1870, ch. 71, being in violation of the restrictive section, 
is unconstitutional. If the premise is correct, the conclusion is legit- 



TAXATION BY THE STATE. 


327 


imate. Then the iuquiry is, does the Act of February 24, 1870, ch. 71, 
grant to any individual or individuals rights, privileges, immunities or 
exemptions other than such as may be, under that act, extended to any 
other member of the community? . . . As to the policy of the 

graduation of tax according to the size of the city or town, we have 
nothing to say. This is a matter left to the discretion of the legislature 
by art. 2, sec. 28; and we do not thint that art. 11, sec. 8, contains any 
restriction on that discretion which has been violated by the Act of 
February 24, 1870, ch. 71.” 50, 283. The State v. Schleer. 1871. 

Privilege Tax on Lawyers Invalid—Reasons — Three Departments 
of State Government—Art. l, Sec. 9. — In this case each of the judges 
delivered a lengthy opinion. Nicholson, C. J., announced the following 
as the result of the opinions of the judges: “A majority of the court 
hold the ’act taxing the privilege of practicing law to be unconstitu¬ 
tional; two judges, Turney and Nicholson, holding that the right to 
practice law is not subject to taxation; two judges, Freeman and 
McFarland, holding that even conceding that the legislature may tax 
the privilege of a lawyer, the present act is unconstitutional, because 
it requires a new license to be taken out from the clerk of the County 
court, and in connection with the previous laws, makes it unlawful to 
practice without so doing; two judges, Deaderick and Sneed, holding 
that the present act is constitutional and valid.” 

“ Nicholson, J., in his opinion, said: “When we are called upon to 
construe that clause in the Constitution which confers upon the legis¬ 
lature the power to tax ‘privileges/ in order to ascertain the intention 
of the framers of the Constitution, we are bound to give such construc¬ 
tion as will harmonize with the several provisions which may involve 
the same question. We not only tind the provision that the powers 
of these departments are ‘distinct/ but we find it provided that ‘all 
courts shall be open/ and that ‘in all criminal prosecutions the accused 
hath the right to be heard by himself aud his counsel.’ It thus appears 
that the Constitution recognized the lawyer as an essential agent in 
judicial proceedings. We must presume, therefore, that when the con¬ 
vention provided in the Constitution that the legislature might impose 
taxes on ‘privileges/ they did not intend to recognize in that depart¬ 
ment of the government the exercise of a power which might involve 
the judicial department in the legitimate exercise of its distinct powers. 
If it be true, as held by the majority of the United States Supreme 
court in the case of Garland ex parley that the right of a lawyer, con¬ 
ferred by the solemn judicial act of the court, is such that he can not 
be depri ved of it at the pleasure of the court or at the command of the 
legislature; or if, as held by the minority of the court in that case, 

1 Acts 1867-8, ch. 129, sec. 5. 



328 • 


TENNESSEE CONSTITUTIONAL LAW. 


lawyers ‘are as essential to the successful working of the courts as 
the clerks, sheriffs and marshals, and perhaps as the judges themselves; 7 
it is difficult to see how the legislature could impose a tax upon the 
office or right of the lawyer without thereby involving the very exist¬ 
ence of the judicial department. It must be borne in mind that this is 
simply a question of power as between two co-ordinate and independent 
departments of the government. 

“ If the power exists at all, it may be exercised at the discretion of 
the legislature, by the express language of the Constitution. Hence, 
although the tax imposed by the present statute may not be so oppres¬ 
sive as to interfere practically with the successful working of the 
courts, yet if the power be conceded, it is conceding that the legislature 
possesses a power, which may be exercised, even to the closing of the 
courts. 

“The true safety of the government consists in arresting the first 
step toward the invasion of one department by another, by the assump¬ 
tion of unconstitutional powers. If the legislature has the power to 
convert the office of an attorney into a taxable privilege, by prohibiting 
its exercise without taking out an annual license, why may they not by 
the same process, convert the offices of the clerks, sheriffs, and mar¬ 
shals, and, iu fact, of the judges themselves, into taxable privileges, 
and require them all to pay taxes on their offices, or cease to hold and 
exercise their functions ? 

“In principle no distinction can be drawn. The principle which 
underlies and sustains our conclusion is the same on which the Supreme 
court of the United States has uniformly held, that the State can not 
impose taxes upon the offices, agencies, or instrumentalities of the 
Federal government. Gobbins v. Erie County, 16 Peters, 435. The two 
governments being supreme and independent in their respective 
spheres, the Constitution of the United States, which is the supreme 
law, forbids the invasion by either, of the powers of the other, by 
imposing taxes on their respective officers or agents. For the same 
reason, the three departments of the State government, being distinct 
and independent, in their respective spheres, the Constitution forbids 
the invasion of the province of one, by the exercise of their respective 
powers in violation of the powers of the others. Such we hold to be 
the character of the act of the legislature, which undertakes to impose 
taxes on the privileges or rights of lawyers, who are officers of the 
courts, and therefore, we declare the act unconstitutional and void.” 
55, 636. Laivyers' Tax Cases. 1875. 

Sleeping Cars. — Cooper, Chancellor, held: “A privilege tax 1 on the 
running and using of sleeping cars on railroads in this State, not owned 


1 Acts 1877, ch. 16, sec. 6. 



TAXATION BY THE STATE. 


329 


by the railroads, is constitutional and valid, although the owner may be 
a foreign corporation, aud the cars may be used for the accommodation 
of passengers traveling through the State.” Third Tenn. Chc’y. Reports, 
p. 587; Pullman Car Co. v. Gaines. 1877. 

Turnpikes — Exemptions — Class Legislation — Charter Construed. — 
A. D. Bright, Sp. J., held: “The ’Act of 1891, ch. 25, p. 67, imposing an 
annual privilege tax of $25 upon ‘each tollgate on turnpikes that collect 
toll for both ways/ is constitutional and valid. The legislature has 
power to declare the business of running a turnpike for tolls a priv¬ 
ilege, and tax it as such. This statute is not vicious class legislation. The 
classification adopted is not arbitrary or capricious. Substantial dis¬ 
tinctions exist, from the taxation point of view, between turnpikes 
charging ‘toll for both ways/ and those charging toll only one way, or 
not at all. This statute is not invalid upon the ground that it violates 
the charter contracts of turnpike companies. Corporations take their 
franchises and privileges, in the absence of explicit contract for exemp¬ 
tion, subject to the State’s right to impose license or other taxes thereon. 
Exemptions from taxation are never allowed unless they are granted in 
‘clear and unmistakable words.’ Every doubt and presumption prevails 
against them. A turnpike company has no exemption from taxation 
where it is granted, by legislative charter, ‘ all the rights, powers and 
privileges’ of an existing company whose charter contained an exemp¬ 
tion from taxation. Exemption from taxation is not embraced iu the 
terms‘rights, powers and privileges.’” 92,369. Turnpike Cases. 1893. 

Inheritance Tax. 

Privilege Tax on Right of Inheritance Not in Conflict with this Section, 
Nor Art. 11, Sec. 8.—The question was the constitutionality of the 2 Actof 
1893, ch. 174; ch. 89, sec. 7. Wilkes, J., held: “ The legislature has con¬ 
stitutional power to impose a privilege tax upon the right of succession, 
whether by will, inheritance, or otherwise, to the estates of deceased 
persons. This right of succession is not a natural right, but a mere 
privilege created by statute, and subject to such conditions and burdens 
as the legislature may choose to impose lor the public benefit. A 
statute imposing a succession tax upon collateral kindred and straugers, 
but exempting direct descendants of the decedent from the tax, is valid. 
The discrimination is based upon just grounds, and the classification is 
natural and reasonable, not capricious aud arbitrary. A statute imposiug 
a succession tax which exempts all estates of less value than $250, is 
valid. This exemption is based upon sound reason and policy.” 94, 674. 
The State v. Alston. 1895. 


1 Shau. Sup. to M. & V., p. 370. 


2 Shan. Sup. to M. & V., p. 79. 



330 


TENNESSEE CONSTITUTIONAL LAW. 


Non-Residents. 

Distinction Between Provisions of the Constitution that Need No 
Legislation to Give them Effect and Those that Do — Capital Employed 
in Purchase of Goods Sold to Non-Residents — History of this Proviso.— 
Sneed, J.: “The history of this proviso is well known. There was in 
the Convention of 1870 a very energetic opposition to engrafting upon 
the new Constitution the clause of the old Constitution which seemed 
to operate so harshly and invidiously against the commercial commu¬ 
nity. We refer to that clause which excludes merchants, peddlers and* 
privileges from the protection of the principle of equality. When, 
however, it was finally adopted, a solemn protest was presented against 
it by the representatives of large commercial constituencies. And 
shortly thereafter, the clause now in question was brought forward and 
adopted. And this was intended as a limitation upon the general power 
conferred by the Constitution of 1834, and was regarded as a great 
triumph in behalf of the merchant. Jour. Con. 1870, 301, 369. In 
the original draft of this clause, it covered only that part of the mer¬ 
chants’ capital used in the purchase of goods sold to 1 merchants,’ and 
sent beyond the limits of the State. In this original form it was adopted 
and referred to the committee on revision, who reported it back amended 
by striking out the word ‘merchants’ and inserting the words ‘non-resi¬ 
dents,’ so as to make it embrace sales of all kinds, when the goods 
were to be consumed without the limits of this State, and in this form 
it became a part of the Constitution, and must be held to apply as well 
to retail as to wholesale merchants. It seems, however, that there has 
been no legislation which recognizes this exception. . . . The legis¬ 

lature, in ignoring the exception, has left no express legislative guide 
to the assessor, and be is thus left to construe the law as he finds it. 
While it is true, in reference to some provisions of a Constitution, that 
they are dormant and quiescent until some statute brings them into 
life and operation, yet there are others which need no legislation to 
give them effect. They are to be distinguished by such as confer mere 
discretionary powers upon the legislature, and such as are positive lim¬ 
itations upon the legislative discretion, such as are mandates for legis¬ 
lative action, and such as are inhibitions per se. . . . 

u The self-executing clause of a Constitution can easily be dis¬ 
tinguished, and may be elucidated by various clauses of our Bill of 
Rights, which are vital and active as they stand, and could not derive 
any additional vigor from legislation. It may be illustrated, too, in the 
clauses now in judgment. The legislature by one clause may tax mer¬ 
chants, peddlers and privileges at its discretion, or it may not tax them 
at all as occupations. But as to capital employed by them, in the pur¬ 
chase of goods sold to non-residents, the legislature can not impose- 


TAXATION BY THE STATE. 


331 


more than the ad valorem tax. This is an inhibition per se, and exe¬ 
cutes itself. The legislature can not violate it by positive enactment, 
nor can it be ignored or emasculated by the absence of legislative recog¬ 
nition. We hold, therefore, that the imposition of auy tax upon that 
portion of the merchant’s capital which is used in the purchase of goods 
which are sold to non-residents, and taken out of the State, is arbitrary 
and unlawful, and that the clause of the Constitution which forbids it, 
executes itself, and must be obeyed with or without appropriate legis¬ 
lation on the subject.” 55, 497. Friedman Bros. v. Mathes. 1872. 

Meaning- of the “Non-Resident” Clause of this Section.— McFAR- 
land, J.: “The provision of the Constitution relied upon means simply 
that no merchant’s tax, that is, the privilege tax upon merchants, shall 
be levied upon that part of their capital used in buying goods to sell to 
non-residents, but the property tax upon merchants shall be uniform 
with the general property tax.” 68, 91. Merchants of Memphis v. City 
of Memphis. 1876. 

Non-Resident Bondholders Not Taxable.—LURTON, J., held: “Non¬ 
resident bondholders are not taxable in this State upon bonds of our 
domestic corporations held and owned by them. Neither the bond¬ 
holders nor this property is within the jurisdiction of the State. The 
Act of 1887, ch. 2, sec. 8, so far as it undertakes to impose such tax 
upon previously issued bonds, is invalid.” 87, 415. 1 Street Railroad 

Co. v. Morrow. 1889. 

Interstate Commerce — What is Not Taxation of — Acts 1881, Ch. 96, 
Sec. 9 .—Fuller, C. J., held: “A State legislature may tax trades, pro¬ 
fessions and occupations in the abseuce of inhibition in the State Con¬ 
stitution in that regard, and where a resident citizen engages in general 
business, subject to a particular tax, the fact that the business done 
chances to consist, for the time being, wholly or partially in negotiating 
sales between resident and non-resident merchants, of goods situated 
in another State does not necessarily involve the taxation of interstate 
commerce, forbidden by the Constitution. A State has power to tax all 
property having a situs within its limits whether employed in interstate 
commerce or not. A citizen doing a general business at the place of 
his domicile can not escape payment of his share of the burdens of 
municipal government because the amount of his tax is arrived at by 
reference to his profits. Where complainants took out licenses under 
the Tennessee law of 1881 to do a general commission business, and 
gave bond to report their commissions during the year, and to pay the 
required percentage thereon, they can not, when they apply for similar 
licenses for the ensuing year, resort to the courts because the municipal 


See same ease, art. 1, sec. 20, p. 154; also 321. 



332 


TENNESSEE CONSTITUTIONAL LAW. 


authorities refuse to issue such licenses without the payment of the 
stipulated tax.” Justice Harlan dissented. 145 U. S., 1-23. 1 Ficklen 
v. Taxing District of Shelby County. 1892. 

By Municipal Corporations — Delegation of Taxing Power — Under 
this Section of Constitution of 1834, the Legislature Could Create 
Municipal Corporations with Power to Tax—Case Criticised: Marr v. 
Enioe.— Turley, J: “This case presents the isolated question whether 
the town of Knoxville, under the provisions of the Act of 1815, ch. 204, 
its charter of incorporation has the power to levy and collect taxes for 
municipal purposes. ... By the second section it is provided that 
the corporation aforesaid shall have full power and authority to enact 
and pass laws and ordinances, . . . and to lay and collect taxes 

for carrying the necessary measures into operation for the benefit of 
said town. It is not necessary to enter into an argument to prove that 
it is necessary for the corporate authorities of Knoxville to have a suffi¬ 
cient annual fund for the purpose of exercising the powers conferred 
upon them, and that this fund can only be obtained by annual taxation 
upon the property of the corporation. But the power to levy this tax 
is assailed upon two grounds: First, because the power to levy taxes 
is inherent in the legislature of the State, and can not be delegated; 
for the sustaining which proposition the case of 1 2 Marr v. Enioe is cited 
and relied upon. Upon this point all we deem it necessary to say is, 
that the State of Tennessee is a sovereign and independent power, 
except so far as it is restrained by the Constitution of the United States, 
that its legislature has unlimited power of legislation except so far as 
it is restrained by the Constitution of the United States, and the Con¬ 
stitution of the State of Tennessee; that it has always been held, and 
never denied, that the power to create corporate bodies for all 
municipal purposes, and with the means of self-government, is a 
legitimate exercise of sovereignty on the part of the State by its legis¬ 
lature; and that there is nothing in the Constitution of the United 
States, or of the State, restraining or prohibiting the exercise of such 
power by the State. The case of Marr v. Enioe, if authority at all, is 
not applicable to this case; there it was held that the legislature could 
not transfer the power of taxation to the county court, because the 
justices were not appointed by the tax payers, and that it would there¬ 
fore be taxation without representation. But in the case under con¬ 
sideration the tax payers of the corporation appoint the assessors, and 
are, therefore, represented by them. It is contended that, though the 

1 Not in Tennessee Reports. 

2 In the case of Marr v. Enioe, 9, 453, decided in 1830, Catron, J., held: “ Under the State 
Constitution of 1796, the taxing power is vested in the legislature, and can not he delegated to 
the counties: and the Act of 1827,49, 1, authorizing the county courts to levy a tax to meet the 
current expenses of their counties, and the Act of 1824,128, authorizing a navigation tax in cer¬ 
tain counties in West Tennessee, are unconstitutional and void. 



TAXATION BY THE STATE. 


333 


Act of 1815 might have been constitutional under the provisions of the 
old Constitution, which directed a specific taxation, that it has lost its 
force under the new, which directs taxation to be ad valorem. This 
argument we do not think maintainable. The Act of 1815 does not 
specify the mode or manner by which taxes shall be laid and levied by 
the corporation, but gives the power. If, then, under the old Constitu¬ 
tion, one mode and manner should have been prescribed, and, under 
the new, another inconsistent therewith, it would follow that the new 
mode prescribed might and should be pursued, as the power is not 
repealed thereby. This would make it necessary, then, that corpo¬ 
rations in levying taxes should do so upon the principles of the new 
Constitution, which provides, in art. 2, sec. 28, that all property should 
be taxed according to its value; and that no species of property from 
which a tax may be collected shall be taxed higher than any other 
species of property of equal value. We, therefore, think that the power 
of the corporation of Knoxville to levy and collect taxes in this mode 
and manner is complete and perfect under the Act of 1815.” 27, 8. 

Hope v. Deaderick. 1847. 

Power to Assess Poll Tax for Corporation Purpose.— COOPER, J.: “ It 

must be admitted that the legislature, since the incorporation into the 
Constitution of 1870 of the limitation on the poll tax, have authorized 
counties, and perhaps towns, in addition to the usual taxes on property, 
privileges and polls for ordinary county and corporation purposes, to 
make a levy of taxes on property, privileges and polls for particular 
purposes. . . . It is probably a continuance of an old usage with¬ 

out properly considering the constitutional restriction. We are con¬ 
strained to hold that the Constitution in this respect is mandatory, and 
that no county or corporation can levy a poll tax for any year exceeding 
the State tax for that year. And that if the defendant corporation had 
already levied for the year in controversy a poll tax of one dollar for 
the usual corporation purposes, its second levy of a similar tax for 
school purposes was unconstitutional and void. The complaiuauts 
would, in that view, be entitled to perpetually enjoin the collection of 
the latter tax. But we are equally clear that the provision of the act 
is severable, and will not affect the residue of the act, nor the ordinance 
based thereon. The tax on taxable polls would constitute a very small 
part of the entire levy authorized for school purposes. And we have 
repeatedly held that a statute void in part, because beyond the com¬ 
petency of the legislature as to that part, will be valid in other respects 
which are severable.” 83, 647. 1 Ballentine v. Mayor etc. of Pulaski. 

1885. 


1 See same case, art. 1, sec. 8, p. 62; art. 2, sec. 2. p. 252; art. 2, sec. 17, p. 277 ; art. 2, sec. 29; 
art. 11, sec. 8; art. 11, sec. 12. 



334 


TENNESSEE CONSTITUTIONAL LAW. 


TAXATION BY COUNTIES AND MUNICIPAL CORPORATIONS. 


By Counties lor County Purposes. 

PAGE. 

Quarterly Court — History—County—Quasi 
Community—Act to Abolish County 
Court and Create Board of County 
Commissioners, Void. See Art. 7, 

Sec. 2, Pope v. Phifer. 

County Court —Jurisdiction and Powers 
Purely Statutory—Can Not Release 
Individual or Corporation from Pay¬ 
ment of Taxes for County Purposes. 

See Art. 6 , Sec. 1, Railroad v. Wilson 
County. 

Internal Improvement Acts in Tennessee— 
History of—Railroad a County Pur¬ 
pose — Exhaustive Discussion of 
this Question—County Court—Af- 
firmatory Act—Voters of a County 


—Counties are Corporations.335 

Revenue Collected for One County Purpose 

Can Not be Diverted to Another.... 347 


County Sovereignty — Tax Levy to Pay 
County Debts—Grant of Power for 
this Purpose Carries With it Obliga¬ 
tion to do So—Evils Under Consti¬ 
tution of 1796 Intended to be Reme¬ 


died by that of 1834. 348 

County Subscription to Build Railroads— 
Counties are Civil Divisions and 

Corporations.349 

County May be Aiithorized by Special Law 
to Vote on Question of Subscription 

to Railroad—Art. 11, Sec. 8 . 350 

County Subscription to Railroad Bonds— 
Enabling Act Annulled by Consti¬ 
tution of 1870 Adopted Thereafter— 

Effect.354 

County Court May Levy Tax for County 
Purposes Only —Police Duties — 

Court Expenses.. 354 

Counties Act Under Delegated Authority 

in Certain Local Matters. 355 

County Court—Contract for Public Bridge, 

Void. 355 

By Municipal Corporations—Levy. 

Legislature May Withhold Power to Assess 

Taxes. 355 

Taxation—Local Assessment—Meaning of— 

History of This Section.356 

When Levy in Excess of Rate Levied by 

the State is Legal. 357 

May be Assessed Higher Than State Rate 
if Levy Does Not Exceed Actual 
Value.358 


Can Not Levy Tax Where State is Estopped. 193 
Railroad Assessment Act of 1875 Relating 
to Assessment by Municipal Corpo¬ 
rations of Property Within Its Lim¬ 


its, Void. 319 

Benefit of Value of Railroad Property 
Within Its Limits Under Assess¬ 
ment Act of 1877. 320 


By Municipal Corporations—Levy. 

PAGE. 

Assessing National Bank Stock—Conflict of 


Laws. 358 

Act of Congress Considered in Connection 

With this Section.358 

Levy of Tax by Civil District—Not Incor¬ 
porated Town—This Provision and 

a Former Opinion Discussed. 365 

Levy of Tax by School District, Void—Pro¬ 
ceedings in Convention of 1870. 367 


For Corporation Purposes. 

Power of a Municipal Corporation to Take 
Stock in Manufacturing Company 

—Corporation Purpose. 359 

Power of Municipal Corporation to Sub¬ 
scribe to Stock in Railroads and to 
Issue Bonds and Levy Tax to Pay 
Same—Building a Railroad a Cor¬ 


poration Purpose. 360 

Corporation Purpose—What is—No Gen¬ 
eral Rule. 364 

Waterworks, Gas Companies, Parks, Pest- 
houses, and Libraries, Corporation 

Purposes. 3fi4 

So is a Public School. 365 

Taxation of Privileges. 

Privilege and Property Distinguished. 370 

How Privileges are Created—Livery Stable. 371 
By Law of Town in Conflict With Consti¬ 
tution and Laws of the State. 369 

Power to Tax Retail Liquor Dealers. 370 

Power to Tax Merchants. 371 

Power to Tax National Banks. 371 

Privilege Tax on Drummers —Interstate 

Commerce—Act of 1881. 372 


Municipal Regulations. 

Corporation Must Determine What Re¬ 


strictions Upon Trade are for Pub¬ 
lic Good—Closing Saloons at Certain 

Hour. 372 

Sabbath Day—Observance May be Required 

by Statute and Ordinance. 373 


Sidewalk Laws. 

Assessment for Cost of Constructing Side¬ 


walk Not a Tax—Not Unequal—Not 

Oppressive—Public Benefit. 373 

Above Doctrine Reaffirmed — Principles 

Upon Which Upheld. 375 


Notice to Lot Owner—By Ordinance or by 
Some Officer or Employee—Delega¬ 
tion of This Power—When Legal 
and When Not—Charter Construed. 377 
Charge for Constructing Sidewalk May be 

Declared Lien on Property. 378 

Increasing and Diminishing Powers of 
Municipal Corporations. See Art. 

11, Sec. 8 , The Stale v. Wilson. 






































TAXATION BY COUNTIES. 


335 


Art. 2, Sec. 29. (The general assembly shall have power to 
authorize the several counties and incorporated towns in this 
State to impose taxes for county and corporation purposes 
respectively in such manner as shall be prescribed by law; and 
all property shall be taxed according to its value, upon the 
principles established in regard to State taxation.) But the 
credit of no county, city or town shall be given or loaned to or in 
aid of any person, company, association or corporation, except 
upon an election to be first held by the qualified voters of such 
county, city or town, and the assent of three-fourths of the 
votes cast at said election. Nor shall any county, city or town 
become a stockholder with others in any company, association 
or corporation, except upon a like election and the assent of a 
like majority. But the counties of Grainger, Hawkins, Han¬ 
cock, Union, Campbell, Scott, Morgan, Grundy, Sumner, Smith, 
Fentress, Van Buren, White, Putnam, Overton, Jackson, Cum¬ 
berland, Anderson, Henderson, Wayne, Marshall, Cocke, Coffee, 
Macon, and the new county herein authorized to be established 
out of fractions of Sumner, Macon and Smith counties; and Roane 
shall be excepted out of the provisions of this section so far 
that the assent of a majority of the qualified voters of either of 
said counties voting on the question shall be sufficient when the 
credit of such county is given or loaned to any person, associa¬ 
tion or corporation; Provided, that the exception of the counties 
above named shall not be enforced beyond the year one thousand 
eight hundred and eighty, and after that period they shall be 
subject to the three-fourths majority applicable to the other 
counties of the state. 1 [Const. l&U, art. 2, sec. *.>. consisted of clause in 
parenthesis only.] 


Taxation by Counties—County Purjwses. 

History of Internal Improvement Acts in Tennessee — Railroad a 
“County Purpose”—Exhaustive Discussion of this Question—Three 
Departments of Government — Constitution U. S., Art. 1, Sec. 1, and 
Art. 10, Sec. 1—Vote of the People — County Court—Affirmatory Act— 
Contract—Retrospective Law—Counties are Corporations—“Voters of a 
County”—This a Government of Majorities.— These several cases from 
the counties of Davidson, Sumner and White, involving analogous prin¬ 
ciples arising under the several acts of the legislature, authorizing and 
regulating county subscriptions to railroads, were submitted to the 
court and argued and considered together. Caruthers, J.: “The lead¬ 
ing questions in these cases are the same, differing only in details and 
mode of proceeding. We will consider them together, pointing out the 
differences so far as may be necessary. They all originated under the 
Acts of 1851-2, authorizing county subscriptions of stock in certain 
railroads. In each case the constitutionality of those acts is brought 
in question. In the two first the proceeding is by petition to the Circuit 
court for writs of mandamus to compel the county courts and their 
chairmen to perform the duties required of them in the statutes; and 
in the other, by bill in equity, filed by the taxpayers of White county 
to enjoin the collection of the tax imposed. In cases of so much 

» For indirect or unimportant references to this section, see 73,422; 75,164 ; 87,225; 111 U. S. 
412-420. 



336 


TENNESSEE CONSTITUTIONAL LAW. 


importance, involving, as these do, more than a million of dollars, and 
many millions more, perhaps, depending on the principles now to be 
settled in this State, it is gratifying to be able to announce that the 
Court concur in every material proposition. . . . 

“The people of this State met in convention, by their representatives, 
in 1834, for the purpose of forming a new Constitution or amending or 
altering the old one, adopted in 1796, at the birth of the State. Not 
content silently to entrust the cause of internal improvements to the 
legislature, under the ample powers devolved upon it for that and all 
other purposes connected with their well-being and prosperity, they 
expressly enjoined this duty upon that body in section 9 of the 11th 
article of that instrument. ... At the first session after the ratifi¬ 
cation of the Constitution by the people in 1835, the turnpike system 
was adopted, by which the State was embarked in the cause to the 
extent of two-fifths of the stock necessary to build any road in which 
the citizens would subscribe and secure the other three-fifths. In 1837 
the aid of the State was extended to one-half, to be paid, in both cases, 
by the issuance of her bonds. A bank of the State was created to con¬ 
stitute a part of the system, and to aid the cause of education, which 
was likewise made a prominent object of the convention, as appears in 
section 10 of the same article. This system of improvement received 
a severe shock in the great revulsion of the commercial world, which 
occurred about the time it went into effect, and was arrested by the 
legislature in 1839. Roads enough, however, had been built or com¬ 
menced, in the meantime, to demonstrate their effects upon the pros¬ 
perity of the counties and sections through which they passed. Provision 
was at the same time made to aid in the construction of certain rail¬ 
roads, which resulted in discouraging failures. From this time, for several 
years, the spirit of internal improvement slumbered, and the constitu¬ 
tional injunction remained unheeded until 1851, when the people became 
fully aroused again on this subject by the spirit which actuated their 
convention, and gave birth to the constitutional mandate copied above. 
A new era in the cause of improvement had, however, by this time been 
ushered in, and its benefits fully tested by our sister States in the adoption 
of railroads for, or in addition to, turnpikes and canals. This system had 
proved itself to be as much superior to the former as that was to the 
common dirt roads, with their wooden causeways and melting embank¬ 
ments, which had preceded it. It was discovered that wherever a good 
system of railroads had been adopted, prosperity had crowned the 
efforts of the people in every branch oi business, and comparative 
darkness and inertia seemed to be settling down upon every section in 
which it had been neglected. This contrast, becoming stronger and 
more glaring every year, at length aroused the State pride, and waked 
up the slumbering energies of our people to a sense of their interest. 


TAXATION BY COUNTIES. 


337 


This, in 1851, resulted in the election of a general assembly which made 
a bold movement to recover the ground which had been lost, and over¬ 
take, if possible, in their career of prosperity those States by which Ten¬ 
nessee had been so far outstripped. Her younger, as well as elder, sis¬ 
ters were looking back upon her in their rapid march and jeering her 
supineness and apathy. 

“ The acts now under consideration constitute a part of the system 
then adopted. It was provided that the bonds of the State should be 
loaned to the various companies then chartered to the extent of $8,000 
per mile, upon the procurement of stock sufficient, from individuals and 
other sources, to complete the roads with that assistance. To this extent 
the aid of the credit of the whole State was given. But it was thought 
reasonable that the particular counties through which such roads might 
pass, in consequence of the peculiar and local advantages to them in 
their property and business, in addition to and above the general bene¬ 
fit to the whole people, should contribute, as a local community, a sum 
commensurate with such extra benefit, to be determined by themselves. 
To carry out that view, which seemed to be reasonable and just, these 
acts were passed. The first provision, by which a debt to be paid by all 
the people of the State is created, is based upon the consideration that 
the benefits of the system will be diffused throughout the whole, and 
certainly all are interested in the prosperity of any part of a community. 
The second provision goes upon the very reasonable conclusion that if 
such improvements be a blessing, those who are nearest to them are the 
largest participants; that is, the benefits derived are, as a general rule, 
in proportion to the proximity to them. If this be so, if the legislature 
were right in this conclusion, it is difficult to controvert, successfully, 
the justice and equity of this regulation, if it had the power, under the 
Constitution, to make it. But we are not to be understood as intimat¬ 
ing that we have any power to base our action upon the inexpediency 
injustice, or impolicy of the enactments of that body, if they be not in 
conflict with the supreme law. And whether these acts are forbidden 
by that law is a grave and important inquiry, upon which we will now 
enter. The general statute passed January 22, 1852, ch. 117, which is 
made applicable to all the counties of the State, and under which the 
counties of Sumner and White proceeded, is in substance as follows: 
(quoting) On the 30th of December, 1863, the legislature passed a special 
amendatory act, to authorize the county of Sumner to issue her bonds 
in payment of her subscription of $300,000, at not less than ten nor 
more than twenty years, at six per cent interest, provided the company 
would receive them in payment, and the people should vote for the 
change in the mode of payment thus prescribed. In this event, it is 
made the duty of the chairman of the court to sign and deliver the 
bonds. An election was ordered by the court, which resulted in a 


22 


338 


TENNESSEE CONSTITUTIONAL LAW. 


majority for the change. . . . The first and most important in the order 
in which we will consider them is that the said Acts of 1852 and 1853 
are unconstitutional. 

“ 1. Because they delegate a power involving taxation to the counties 
for an object not local. Whatever doubts may exist upon the abstract 
question of the authority of the law-making department to delegate any 
portion of its power to the subordinate civil divisions of the State, or 
town corporations, such doubts can not arise here, because this author¬ 
ity is expressly given in our Constitution, in specified cases, as to local 
matters generally. By article 11, section 8, the legislature ‘have a right 
to vest such powers in the courts of justice, with regard to private and 
local affairs, as may be deemed expedient/ 

“2. As to the taxing power, the most important and delicate of all 
the legislative powers, article 2, section 29, confers upon the legislature 
‘the power to authorize the several counties and incorporated towns in 
this State to impose taxes for county and corporation purposes respect¬ 
ively, in such manner as shall be prescribed by law/ 

“It is not, nor can it be, controverted that this last section fully 
covers and sustains the act in question, if the railroad be properly a 
‘county purpose/ But it is insisted in the argument that it is not so in 
the sense of the Constitution. It is no easy matter to affix a clear and 
definite meaning to this phrase. It is less difficult to state cases which 
do, and others which do not, fall within it, than to draw any exact or pal¬ 
pable line between them. . . . Is a railroad a‘county purposed . . . 
One of the first wants, next to the necessary means of subsistence, in any 
community, is some mode of reaching each other for social or business 
intercourse and mutual assistance and advantage. Wild animals have 
their trails, the Indian his path, and the white man his roads and bridges. 
These are indispensable in the rudest organizations of society, for both 
private and public purposes. ... As society advances in civiliza¬ 
tion and wealth, its necessities in this regard continue to increase, and 
greater and still greater facilities for intercourse of this kind are 
demanded. ... So the common dirt road for wagons is superseded 
by turnpikes, and these again by the railroad. . . . But, like most 

other temporal benefits, it has to be purchased ‘ at a great price/ Indi¬ 
viduals who have the spirit to do it are not often sufficient for the task, 
and everywhere it has been found necessary, by some means, to com¬ 
mand the aid of corporations, counties, States, whole communities. 
Such is the system adopted in our State, of which the act under consid¬ 
eration is a part. The State subscribes $8,000 per mile (now $10,000 by 
act of the last legislature); the counties on the line of the road, and 
individuals, both natural and artificial, everywhere, as much as they 
choose—no more; no coercion, except to enforce such engagements as 
they may voluntarily make. 


TAXATION BY COUNTIES. 


339 


“ Here, then, is a road to pass through the county of Sumner, touch¬ 
ing her seat of justice, bringing to the doors of her citizens all the 
necessaries and luxuries both of the north and south, transporting all 
their surplus productions to the best markets and her people wherever 
interest, business or pleasure may call; and all this with that great dis¬ 
patch which steam alone can impart to matter, aud before which space 
dwindles into a point, and the people of distant States are brought into 
daily communication. If, then, an ordinary dirt road, or less common 
turnpike road, is a ‘county purpose/ and a proper subject of county 
taxation, as well as bridges over their streams, because they are local 
benefits to the people, coupled with an advantage to the public gen¬ 
erally having occasion to pass over them, how can it be said that a 
railroad is not, which answers all these purposes so much better, and 
produces a state of prosperity of which they are entirely incapable? 
Both are roads in the county, and we can not argue that because one is 
better, and more costly, if you please, than the other, the building of it 
shall not be regarded as a county purpose. Nor can the fact that it runs 
into or through other counties or States, or is owned or managed in 
whole or in part by others, deprive it of this character. This objection 
has never been urged, and could not be successfully, to a dirt or turn¬ 
pike road, and applies with still less force to this. The length and 
magnitude of the work can only increase the local advantage to every 
point it may pass. It is the thing, and its objects and purposes, which 
defines its character in this respect, and not its extent and magnitude. 
. . . The same question, in principle, came up and was decided by 

this court in the case of Nichol v. The Mayor aud Aldermen of Nashville. 
. . . Now, if that was a corporation purpose, is this not a county 

purpose? Is not this the strongest case? This road passes through 
the whole county, as well as the corporation of the seat of justice in 
the center. The same question has often been up in other States, and 
it is believed that there is but little, if any, conflict in the decisions. 
The questions should be regarded by the courts as settled aud forever 
put to rest. Some of the cases, however, have gone further than we 
would be willing to go, or than this case requires. The common argu¬ 
ment that the power of a county or town corporation is confined to 
their limits has been everywhere met and refuted or exploded. And 
the kindred argument that, to constitute a town or county purpose, the 
improvement or object for which the people are taxed must be entirely 
within their borders, has suffered the same fate. 9 B. Mon., 526; 
5 Gilm., 405; 1 Jones, 70; 4 Comst., 419, 420; Ohio, 609, 625; Goddin 
v. Crump, 8 Leigh. 

“It is, however, contended secondly, that if this be a county pur¬ 
pose, still these acts are in conflict with the Constitution, because they 
are not tiual and obligatory, but depend for their vitality upon the vote 


340 


TENNESSEE CONSTITUTIONAL LAW. 


of the people; and that this is a transfer of legislative power to the 
people, which is contrary to our republican system of government, as 
set up in the Constitution, as well as its genius and cardinal principles. 

“ With these latter tests, it may be remarked, we have nothing to 
do, except so far as they may tend to illuminate what is written in the 
Constitution. If the construction and administration of our laws, 
supreme or subordinate, were to be governed by the opinions of judges 
as to the genius or general principles of republicanism, democracy, or 
liberty, there would be no certainty in the law; no fixed rules of decis¬ 
ion. These are proper guides for the legislature where the Constitu¬ 
tion is silent, but not for the courts. It is not for the judiciary or the 
executive department to enquire whether the legislature has violated 
the genius of the government, or the general principles of liberty, and 
the rights of man, or whether their acts are wise and expedient, or 
not; but only whether it has transcended the limits prescribed for it in 
the Constitution. By these alone is the power of that body bounded; 
that is the touchstone by which all of its acts are to be tested; there is 
no other. It would be a violation of first principles, as well as their 
oaths of office, for the courts to erect any other standard. . . . 

“It has become an axiom in our jurisprudence, now nowhere dis¬ 
puted and everywhere adopted and acted upon, that the courts have 
power, and it is their duty, to pass upon the constitutionality of an act 
of the legislature, and declare it nugatory, if there be an irreconcilable 
conflict. Yet the rule is, as generally recognized, that it would be 
inconsistent with that comity and confidence which should ever subsist 
between co-ordinate departments of the same government, and the 
high respect due both to the intelligence and honesty of the people’s 
chosen representatives, not to decide upon their acts with every pre¬ 
sumption in favor of their validity, which should be overcome only by 
the clearest convictions of judgment, after the most grave and mature 
examination and profound reflection. 3 Dali., 171; 4 Id., 14; 8 Cranch, 
87; 14 Mass., 345; 11 Penn., 70; 2 Mon., 178; 9 Dana, 514. 

“The admitted theory of our government is that all power of every 
kind is derived from the people, as the natural source or fountain. In 
every government, no matter by what name called, or whether vested 
in one or many persons, these powers are naturally divided into three 
classes: the legislative, the law-making; judicial, the law-expounding; 
and executive, the law-enforcing. . . . Each was made sovereign 

in its sphere, but powerless beyond it. They are all agents of the peo¬ 
ple, and the Constitution their power of attorney. All acts beyond this 
are nugatory and void; but, within it, binding upon all, whether right 
or wrong, politic or impolitic. No relief can be obtained if the charter 
is not transcended. Partial evil must be endured for the general good. 
The harmony of the system must be maintained. . . . 


TAXATION BY COUNTIES. 


341 


“The basis upon which the whole American fabric has been erected 
is that the people being in possession of all power, have the right to 
partition it out as they think most conducive to their happiness, in the 
form of written Constitutions, by which all invested with shall be 
effectually controlled. This is the supreme and paramount law, before 
which all must bow with reverence. Over its barriers even the legisla¬ 
ture, with its mighty powers for good and evil, can not pass. This limi¬ 
tation would be worse than useless if there were no power in the State 
to decide upon their acts and to bring them to the test, whenever any 
controversy arises on the subject. This delicate and important duty has 
been necessarily devolved upon the judiciary. ... Of necessity 
they must decide what the law is. In doing this they are obliged to 
look, first, to the supreme law to determine upon any conflict with it 
that may be alleged. This necessarily involves the right to declare the 
act of the legislature void wherever such conflict is found clearly to 
exist. Fletcher v. Peck, 8 Cranch, 87. . . . ‘ The legislative authority 
of this State shall be vested in a general assembly, which shall consist 
of a senate and house of representatives, both dependent on the people/ 
Const. Tenn., art 2, sec. 3. Then, the only legislative powers of con¬ 
gress are those specified in the instrument—‘herein granted’—but no 
others; but those of the general assembly of the State are general, 
extending to all powers of government properly denominated legisla¬ 
tive, falling under that clause of powers according to the accepted 
meaning of the words used; not that which is ‘herein granted/ but the 
‘legislative authority of the State/ all the law-making power. But still, 
the past experience and sound forecast of the people were too great to 
leave this immense grant of power without limitations and restrictions. 
These are carefully and emphatically prescribed in both Constitutions. 
. . . In the Constitution of Tennessee, article 1, many of them are 

set forth. In these and other clauses we find guards and limitations 
upon legislative power in the fundamental law. These, as it must be 
presumed, were regarded as sufficient checks on the power granted, and 
no other can be added but by the same authority. Were it not for 
these restrictions the legislature of Tennessee would be as omnipotent 
as the parliament of Great Britain is assumed to be by the great com¬ 
mentator; and the same would, or might, be the case if there were no 
power in the State to hold it to its orbit and enforce the checks and 
balances of the Constitution. And these or worse consequences might 
follow if this restraining power, not so directly under the control of 
those upon whom all power acts, were allowed to be governed in their 
action by arbitrary rules established by itself, instead of the written 
Constitution established by the people. The one would be as fluctuating 
as the opinions and prejudices of men, but the other is fixed and stable. 
In this lies the great advantage of a written Constitution — a settled, 


342 


TENNESSEE CONSTITUTIONAL LAW. 


unbending, supreme law. ... Is the Act of 1852 forbidden by any 
clause in the Constitution of the United States, or that of the State of 
Tennessee, because of the reference made to the people ? . . . The 

court is of the unanimous opinion, and so decide, that the reference to 
the people of the question of subscription or no subscription of stock 
does not invalidate the act by bringing it in conflict with the Constitution. 
This is a general law — perfect, finished and unconditional. It is not 
made to depend for its vitality upon the vote of the people, or any other 
future contingency. Whether Sumner, or any other county, act under 
it or not, it is still the law of the land, addressing itself to all the 
counties of the State, until repealed. . . . 

“ But, again, this act provides for the creation of a county debt for 
stock in a road, and a tax to meet it, and this is suspended on a vote of 
the people, and not the action of the court. The legislature, it is admit¬ 
ted, could do this, or it could empower the court or a corporation to da 
it, but can not leave it to the people. ... By another section the 
‘legislature is authorized to vest power over private and local affairs in 
the courts of justice.’ Art. 2, sec. 8. But here, in relation to the very 
delicate subject of taxation, the authority to impose taxes for county 
purposes (and we have seen that this is such a purpose) is to be com¬ 
municated to the ‘counties’—not to the courts, nor to the justices, nor 
to the officers. And how shall this power be exercised—by what 
agency or instrumentality? By the County courts or Circuit courts, or 
by representatives from each civil district, selected for that purpose in 
convention, or by the people? No. The mode of doing it is left to the 
general assembly. The authority is to be exercised by the ‘ counties t 
in such manner as shall be prescribed by law. 1 The legislature, then, 
have, by the Constitution, the unequivocal power to determine and 
direct how and in what manner these taxes may be imposed by the 
counties upon themselves, as well as to what extent and for what pur¬ 
pose. That the County court may have been empowered to act for the 
county on this subject is no objection to the different mode or agency 
adopted in the act. It may certainly be said with great safety that as 
the legislature was expressly entrusted with the selection of the mode 
and manner of imposing the debt and the tax upon the county, it could 
not have adopted a plan more unexceptionable than to refer the ques¬ 
tion directly to the taxpayers themselves. It was reasonable and just r 
the Constitution permitting it, that it should be left to the people of the 
county to decide for themselves, in view of the burdens it would impose 
upon them, on the one hand, and the advantages on the other, whether 
they would go into it or not. The people might well consider that, 
although the debt proposed would be heavy, and the taxes onerous, for 
some years, yet their lands would be greatly enhanced in price; their 
facilities in trade and business, in transportation of their surplus pro- 


TAXATION BY COUNTIES. 


343 


duce, and intercourse with the rest of the world would amply compen¬ 
sate them. The objection to this mode of deciding the matter, even if 
we were at liberty to decide upon grounds of expediency—which we 
have seen we are not—that the people are liable to be, and were in this 
instance, misled by parades, barbecues, and torchlight processions, got 
up by the friends of the measure, and backed by eloquent speeches by 
which the voters were gulled, deceived, and carried away, can not be 
for a moment entertained. It is striking at the foundations of our insti¬ 
tutions, and would annul all popular elections. It is a fundamental 
principle, in an elective popular government, that the people are capable 
of self-government, and may be safely trusted with their own interests. 
Besides, this was a matter among themselves and others, and others 
interested in their action can not be affected by it; they can not be 
allowed to take advantage of their own wrong in a contest with others. 
This is not a controversy between the affirmative and negative voters, 
but between a corporation and the whole county, bound by a vote of 
the majority. . . . 

“The clause which forbids private property to be taken for public 
use (art. 1, sec. 21) has no application, because that rests upon the doc¬ 
trine of eminent domain, and this upon the right and power of taxa¬ 
tion. They are entirely distinct, and in every respect dissimilar. The 
former is when something beyond a mere equal share of the public bur¬ 
dens is taken from the citizen, and therefore he must be paid by that 
public to whose use it is applied; it is made a debt against the com¬ 
munity of which he is a member. But this debt, as well as others 
which are contracted for the general good, can only be paid by taxation. 
The amount necessary for this and all other public purposes must be 
raised by exactions upon all, in some form of taxation. In relation to 
this the idea of refunding, or compensation, can not be conceived. It 
would be simply and palpably absurd. Here no man’s property is taken, 
but a tax imposed. . . . It is further insisted that if the Act of 

1852 be not repugnant to the Constitution, and the proceedings under it 
subject to no fatal objection, yet the changes made by the amendatory 
Act of 1853, under which this demaud is made, are such as to aunul the 
subscription and render the whole proceeding void. Let us examine it. 
This act refers to the proceedings under the former act, ratifies and con¬ 
firms them, declares the subscription of the stock valid and binding 
upon the county, but provides a different mode of paying for the stock; 
that is, by the issuance of the county bonds, payable in no less than 
ten or more than twenty years, at an interest of six per cent, to be 
signed by the chairman, provided a majority of the people vote for the 
change, and the board of directors for the road will agree to it by 
receiving them in payment. The question was submitted to the voters, 
and carried in favor of the bonds, and the company agreed to receive 
them. . . . 


344 


TENNESSEE CONSTITUTIONAL LAW. 


“In what light is this transaction to be considered? Is it not a con¬ 
tract? A proposition was made by the railroad company to the people 
of Sumner county, through their County court as an instrument, to sub¬ 
scribe for a certain amount of stock to build that part of the road which 
passed through their borders; they accepted the proposition, and the 
contract was closed by the subscription. All this was done, as we have 
said, in substantial conformity to the law, so as to bind both parties. 
The contract is closed. The county is bound for the money, and the 
corporation for the stock. Afterwards, by this act, the legislature, 
under whose authority the contract was made, empower the parties to 
change it, if they choose, in the relation to the time and mode of pay¬ 
ment, and some other particulars. The same parties who made the 
contract—the people on the one side and the board of directors for the 
road upon the other—agree to it. Whose rights are affected? What 
rule of law forbids it? The parties to any contract may surely change, 
impair, or even destroy it, by mutual consent. The legislature can not 
act retrospectively upon a contract so as to impair its obligation or affect 
vested rights, but the parties to it may, when no other rights but their 
own have arisen under it. . . . 

“ Counties are not corporations, but civil and political divisions of 
the State. For some purposes they are mere civil divisions, but for 
others they certainly are corporations. They are, therefore, some¬ 
times called quasi corporations. They are political, aggregate cor¬ 
porations, capable of exercising such powers as they may be vested 
with by the legislature. Ang. & Ames, 17, 24; 9 Wheat, 907; 1 Bald. 
222. Any body of persons capable of acting as one man, and in a single 
name fixed by law, having succession, is, in some sense, a corporation. 
Without going into all the ramifications of this subject, to be found in 
the books, it is sufficient to say that the counties in our State are clothed 
with the powers and attributes of corporations to a sufficient extent to 
be able to act and contract; to become debtor and creditor, so as to 
subject all the persons and property within their limits to taxation in 
any mode that may be prescribed by the legislature. And whether this 
be by the action of the County court, or a vote of the people, or any 
other agency, can make no difference. The legislative power is not 
restricted or confined, in this particular, except as to purpose—not as to 
mode. The only inquiry upon this point is, what saith the law ? 

“If the county should take the stock as a corporation, it must own 
it as such, and can not distribute it among the people, and in the pro¬ 
portions they may pay the tax. Why not? Certainly nothing could be 
more just. It is a debt against all, and for which all are bound as an 
aggregate mass; but as the debt is discharged, the thing for which it 
was contracted is distributed to each in proportion to what he may pay. 
He who pays most money is to own most stock. No provision could 


TAXATION BY COUNTIES. 


345 


be more just and equitable. It would, in some respects, operate 
unjustly to retain the stock, when paid for as a county fund, to very 
mauv who had borne the burden of it. The population of a county is 
constantly fluctuating. One man who had paid a part of the tax 
removes, and another who paid none of it, comes into the county; in 
which case the one who had contributed nothing would have all the 
advantages of the fund, which might relieve him from county taxes, as 
well as the road which was built by it, and the other, who had paid and 
toiled for the benefit, would be entirely deprived of it. The distribu¬ 
tion of the stock avoids this injustice, as it becomes property and goes 
with the owner. If there were no other reason this would be sufficient 
to sustain the propriety of this provision of the statute. And as to the 
discretionary power of the legislature to order it the one way or the 
other, there can be no question. But it is said it cannot be a county 
purpose, as required by the Constitution, uuless the stock belongs to 
the county as a corporation. It is not the stock as an investment to 
which reference is made in this clause, but the road in which the stock 
is held. If this were not so, the people might be taxed to raise a fund 
to take stock in a steamboat or factory, or California mining company, 
provided the authorities should allow it to be done. But the Constitu¬ 
tion protects people from taxation for speculating enterprises. It can 
only be done for some local improvement or benefit; the thing to be 
done with the taxes raised must in itself be a ‘county purpose/ The 
compensation to the payer of the taxes may be in the local benefits, 
alone, to him and his neighbors; or to this may be added stock in the 
improvement, to the extent of his contribution, as in this case. 

“But it is here objected that the result of this proceeding, disguise 
it as you may, is to make a citizen take stock whether he will or not; 
and that is oppression. That is to say, if we understand the argument, 
that although it might be lawful to tax the citizen to build a road, if 
that is the end of it, yet if you make him the owner of stock in it to the 
extent of his contribution in taxes, and return to him any part of the 
outlay in tolls or profits, it becomes unlawful and oppressive. It is 
very true that no man can be forced to enter into a contract for stock 
in a road, or for any other purpose, without his consent; it is of the 
essence of a binding contract that the party freely assented to it. But 
this is not a contract with the individual citizen but with the commu¬ 
nity, the aggregate corporation, or body politic, of which he is a mem¬ 
ber, and by the legally expressed will and lawful engagements of which 
he is bound. The consent of such bodies is to be given in such manner 
as may be prescribed by law. Here it was to be done by the commu¬ 
nity to be bound, itself, and to be ascertained by the vote of a majority. 
A majority gave this cousent, and entered into the engagement. Shall 
not the minority be bound by it, and incur equal responsibilities, as well 


346 


TENNESSEE CONSTITUTIONAL LAW. 


as participate equally iu any advantages that may result? Can the 
minority complain of oppression by the majority, when the latter take 
the same burdens upon themselves? It is the very first principle of all 
republican governments, and every free society or organization of men, 
that majorities must rule and control. Kyd, 422 ; Ang. & Ames, 396 r 
397; 7 Serg. & R., 517. This principle is only limited by positive regu¬ 
lations. Id. Has it ever been thought that any contract or lawful impo¬ 
sition of taxes, or other burdens, could be repudiated by the minority 
because it did not meet their approbation? In every community or 
society consisting of many there must be some mode of concentrating 
the power of action into a single will or purpose. In a despotism, this 
is in one individual; in an aristocracy, in a few; and in a democracy 
or republic, iu all. But in each and all the result is the same — one pur¬ 
pose in action to which all must submit, or there is an end to all gov¬ 
ernment and order. Happily, under our institutions the principle is- 
held sacred that none are bound unless a majority agree to it—but then 
all, every individual equally, whether he approve of the decision or not. 
Perhaps there never was a tax laid by the legislature, either State or 
national, by the County court, or even by the people, where the power 
to do so is by law vested in them, which met the approbation of every 
taxpayer. A very honest difference of opinion may exist as to the tax, 
or the object to be accomplished by it; and to produce action, some 
mode of settling the question must be resorted to. In this case it was 
made to depend upon the result of a popular election; the voice of the 
majority has been heard, and must be obeyed by all. If the decision 
be wrong, or the burden great, it is better to endure it than to abandon 
a sacred principle which underlies all our institutions. By an abandon¬ 
ment of this, if it were in our power to do so, the partial evils of a 
temporary wrong would be but as the weight of a feather to those 
which would follow. If the first principles of our system are aban¬ 
doned, the whole fabric must fall to the ground, ‘and great would be 
that fall.’ 

“The Davidson county case presents some different questions. The 
act under which it proceeded was different from the other in a few par¬ 
ticulars. It was passed at the same session (Act 1852, ch. 191, secs. 12- 
20), and only applied to a few counties, including Davidson. ... 
The question made is, whether this act requires a majority of all the 
legal voters residing in the county at the time of the election, or only a 
majority of those who may attend the polls and actually vote. We are 
referred to the latest State and county elections to show the number of 
voters in the county, and then to the vote on this question to prove that 
the number of affirmative voters falls very far short of a majority of the 
legal voters in the county, although they exceed by several hundred 
the negative votes. . . . When a question or an election is put to 


TAXATION BY COUNTIES. 


347 


the people, and is made to depend on the vote of a majority, there can 
be no other test of the number entitled to vote but the ballot box. If, 
in fact, there be some, or many, who do not attend and exercise the 
privilege of voting, it must be presumed that they concur with the ma¬ 
jority who do attend, if, indeed, they can be known at all to have an 
existence. Certainly it would be competent for the legislature to pre¬ 
scribe a different rule. But when they simply refer a question to the 
decision of a majority of the ‘ voters of the county/ it can not be under¬ 
stood that they mean anything more than those who see fit to exercise 
the privilege. Great inconvenience would result from the opposite rule. 
Suppose the vote should be very close— ODe, two, or a dozen majority, 
one way or the other—how could the fact be ascertained but by the box 
of the exact number entitled to vote? It can not be presumed that this 
or any other question submitted to the people was intended to be 
involved in such embarrassment. Whenever it is so intended by the law, 
it will be expressed, and some conzenient mode prescribed to settle any 
controversy that may arise. They might say, to be sure, that a number 
equal to a majority of those who voted at the last election for governor, 
or for electors for president, or prescribe any other arbitrary test. 
Though this might not be the true test of the number then in the 
county, yet it would be a sufficient approximation to certainty to answer 
the purpose. This or any other prescribed test would be binding, though 
arbitrary, and of doubtful expediency. But as none such, or any, is 
given by the legislature, we take it for granted, and so construe their 
language, that it was only intended to look to the ballot box for the 
‘voters of.the county/ and from that allow no appeal. Ang. & Ames, 
398, 399.” 1 33, 638. L. & N. R. R. Co. v. Davidson County et al. 1854. 

Revenue Collected for One County Purpose Can Not be Diverted to 
Another.— By the Act of 1855 ch. 6 (C. & N. 200), the legislature ex¬ 
pressly delegated to the County courts the power to levy a tax for 
county purposes. Harris, J. : “ In the exercise of that power the fund 
which is the subject matter of this controversy was levied and collected, 
and the legal title to it was vested in the county trustee, for county pur¬ 
poses. Now, has the legislature the power to divert the fund from the 
purposes for which it was levied and collected, and transfer it to another 
separate and distinct corporation, to be by it appropriated and used at 
its discretion? We think not. This would be an unauthorized interfer¬ 
ence with vested rights. . . . The County court levies the taxes 

with the view of providing for the current expenses of the county, and 
if the legislature has the power to divert the fund thus levied to other 
and different purposes, it has the power to bankrupt the county at 
pleasure. Perhaps in the present case it is not necessary to determine 


1 Code 1858,1142; T. & S., 1142; M. & V., 1278 et seq. 



348 


TENNESSEE CONSTITUTIONAL LAW. 


whether the legislature has the power, under this provision of the Con¬ 
stitution, to authorize the County court to levy and collect ‘a tax for 
corporation purposes/ as they have not exercised such power, but have 
only attempted to divert a portion of the taxes, in one county in the 
State, from the purposes for which they were levied and collected to a 
wholly different purpose. This they can not do.” 37,192. Mayor etc. 
of Nashville v. Towns. 1857. 

“County Sovereignty”—Tax Levy to Pay County Debts — Grant of 
Power for this Purpose Carries with it the Obligation to do So — Evils 
Under Constitution of 1796 Intended to be Remedied by that of 1834.— 
“This was a proceeding under the *Act of 1856, ch. 90, to compel the 
justices of Scott county, by a writ of mandamus from the Circuit court 
of said county, to levy a tax sufficient for the discharge of four several 
judgments, recovered by the relator against the commissioners of said 
county, as a portion of the amount agreed to be paid for the building 
of the court house of said county. 

McKinney, J.: “This provision (of the Constitution), it is insisted, 
merely empowers the legislature to delegate to the counties the right 
of authority to levy taxes for county purposes; but does not confer 
upon the legislature the power to coerce them to do so. In other 
words, that when the authority to impose a tax for a given county pur¬ 
pose has been conferred upon the county, and the manner in which it 
may be exercised has been prescribed, the power of the legislature is 
exhausted; and it is left entirely optional with the agents to whom the 
power is delegated, whether they will exercise it or not. That the 
authority to impose taxes for county purposes authorized to be delegated 
by the legislature to the justices of the several counties, or other 
agents, is a portion of the sovereign power of the State, which, under 
our Constitution, is lodged in the legislative department of the govern¬ 
ment. That its exercise, in its very nature, is discretionary, and can 
not be controlled by the judicial department. And, consequently, the 
justices of a county, or other agent selected, as the depository of a por¬ 
tion of such power, can no more be coerced to exercise it by the judicial 
tribunals, than could the legislature itself; nor can the legislature 
empower the courts to do so. This is certainly carrying the notion of 
‘county sovereignty/ as it has been called, to a most extravagant length, 
to say no more of it. Yet it is insisted that this doctrine is main¬ 
tained by the case of The Justices v. Hoodenpyle, 7 Humph., 145, 
decided by our predecessors in 1846. If that case is to be understood 
as deciding that the legislature does not possess the constitutional 
power to provide for the compulsory assessment of a tax, to discharge 
a debt properly contracted under the authority of a general law, for a 


1 Code 1858, 534 et seq.; T. & S. ( 534 et seq.; M. & V., 593 et seq. 



TAXATION BY COUNTIES. 


349 


legitimate county purpose, then we feel constrained to dissent from its 
authority. 

“The power to contract debts for the erection of public buildings, 
and various other county purposes, is indispensable to every couuty, 
and has been conferred by several general statutes. And as taxation is 
the appropriate means of raising funds for the discharge of such debts, 
the power to impose taxes for such purposes has been conferred, gen¬ 
erally, upon the justices of the County court. The want of authority 
in the legislature to delegate the power of imposing taxes to the County 
courts for various purposes was felt to be a serious evil under the old 
Constitution; and, looking to the motives which must have influenced 
the convention in the adoption of the provision on this subject, above 
quoted, can it fairly be supposed that it was merely intended to confer 
a discretionary power upon the counties to impose taxes for the dis¬ 
charge of their just liabilities, but not to impose any duty or obligation 
upon them to do so? Was it deliberately designed that these quasi 
corporations should be invested with the power to create debts for 
legitimate and indispensable county purposes and yet be absolved from 
all legal obligations, and placed beyond the power of coercion to dis¬ 
charge such debts? We do not so understand the constitutional pro¬ 
vision in question. 

“The power was given not merely that it might, but that it should 
be exercised in the cases contemplated by the Constitution. The grant 
of the power to raise money in this mode for the discharge of county 
liabilities carries along with it, by necessary implication, the obligation 
to do so. If it be competent lor the legislature to empower the counties 
to impose a tax, and dictate the manner in which it shall be done, surely 
it can provide for the exercise of the power. If not, the authority to 
delegate such power to the counties is unmeaning aud illusory, and 
practically the creditors of the county are left without remedy. To this 
conclusion we would regret exceedingly to be forced. But we feel no 
hesitation in declaring the Act of 1856 to be a valid and constitutional 
law; and more than this, a most just and salutary law, highly creditable 
to its authors, as manifesting a determined spirit of opposition, in limine , 
to everything that savors of repudiation in low as well as in high 
places.” 1 37,698. Newman v. Justices of Scott County. 1858. 

Railroads—Subscriptions by Counties — Counties Civil Districts and 
Corporations.— Freeman, J., held: “Under this provision of the Consti¬ 
tution of 1834 the legislature has the power to submit the question of 
subscribing stock to a railroad company to a vote of the people, 2 and 
the authority given to the county by the legislature to make such sub- 


»This opinion overruled Justices of Cannon County v. Hoodenpyle, 26,145. 
»T. & 8., 1142 et seq.; M. & V., 1278 et seq. 



350 


TENNESSEE CONSTITUTIONAL LAW. 


scription is made dependent for its exercise on the result of a vote of 
the citizens for or against the proposition”; and that this provision “con¬ 
fers no power upon counties and incorporated towns to impose taxes 
for any purpose, but only empowers the legislature to authorize them to 
impose taxes for county and corporation purposes, and this the legis¬ 
lature may do in such manner as it may prescribe by law, and when 
such authority is given, the county acts under the authority conferred by 
law, and if an election is required, or other prerequisite on which the 
taxes shall be unpaid, or the liability incurred, then the law must be 
pursued, and the power exercised in accordance with the statute. In so 
far as the county shall act beyond and outside of the authority con¬ 
ferred in any material requirements, it acts without any authority at all. 
It is settled that while counties are for some purposes but civil divisions 
of the State, for others they are corporations—they are political, aggre¬ 
gate corporations, capable of exercising such powers as they may be 
vested with by the legislature, and this being so, it follows that a mem¬ 
ber or class of members of such corporation can ask the interposition 
of a court of equity to prevent the use of the funds of that corporation 
to an unauthorized purpose, or to ask that a liability contracted to be 
fixed upon the corporation, by which he is to be bound to pay him 
money, as an integral part of such corporation, shall be annulled and 
made without authority.” 60 , 76. Winston v. T. & P. B. B. Co. et al. 
1873. 

County May be Authorized by Special Law to Vote on Question of 
Subscription to Railroad—Art. 11, Sec. 8 — Case Overruled: Wallace 
v. Tipton County.— The *Act of February 25, 1867, providing that 
“the County court of any county through which the line of the 
Mississippi River Railroad is proposed to run, a majority of the justices 
in commission at the time concurring, may make a corporate or county 
subscription to the capital stock of said railroad company of an amount 
not exceeding two-thirds of the estimated cost of grading the road-bed 
through the county and preparing the same for iron rails”; and provid¬ 
ing, that after the subscription shall have been made by the court, the 
court should levy an assessment on taxable property to pay said sub¬ 
scription ; and providing that the court might issue bonds for said sub¬ 
scription, was considered from a constitutional standpoint. 

Freeman, J. : “It is maintained that by what is known as the general 
internal improvement act of the legislature of 1852, entitled ‘An Act to 
authorize and regulate county subscriptions for railroad stock/ a general 
rule, or law, was enacted regulating this question of county subscrip¬ 
tions to these corporations, and the leading feature of this law was that 
before any subscription could be made, the County courts were required 


1 M. & V., 1278 et seq. 



TAXATION BY COUNTIES. 


351 


Ho call for the approbation of the legal voters of the county/ by means 
of an election to be held for the purpose, the precise mode of holding 
which was all definitely fixed in said act; and that this was the ‘general 
law of the land’ on this subject at the time of the passage of the acts 
hereinbefore cited. These acts, authorizing the subscriptions contem¬ 
plated to be made by the counties through which this road should run, 
adopted a different rule for such counties, and authorized these counties 
to make their subscription through and by the action of the County 
courts alone, without any submission of the question by election to the 
people of the county. It is earnestly contended that this law, then, is 
obnoxious to the Constitution, either in the fact of suspending a general 
law for the benefit of these counties, or by it these counties receive a 
benefit inconsistent with the general law of the land, or that they obtain 
a privilege not had nor obtainable by other counties of the State. The 
Act of 1852, we may here say, is not suspended by the Act of 1867, nor 
professed to be. It remained in full force and effect. ... It was 
not a suspension of this law, then, and can only be attacked, we take it, 
on the ground that the Act of 1867 was a law passed ‘ for the benefit of 
individuals inconsistent with the general laws of the land.’ . . . 
Assuming, for the argument, that the difference in the two acts—that of 
1852 and that of 1867—is a benefit not consistent with the general law 
on the subject of county subscription, is this latter act unconstitutional? 

“We take it the real question on this aspect of it is, whether, under 
art. 2, sec. 29, of the Constitution, the counties and corporations of the 
State can be each separately authorized to incur a liability for such 
county and corporation purposes as the legislature may choose to pre¬ 
scribe by a law passed giving such authority to the particular county or 
incorporated town, or whether every such tax must be imposed by a 
general law, equally applicable to every county and corporation in the 
State, thus making one general regulation on this subject for each and 
every county and incorporated town in the State. . . . The legis¬ 

lature has authorized these counties to contract for stock in a railroad 
company, and incidentally to levy a tax to meet the burden thus 
incurred. Must every such contract be by virtue of a general law, one 
operating equally upon every county and municipal corporation in the 
State, or may it be done by a special law? One view of this question 
seems conclusive of the result. The same authority is to be exercised, 
or prescribed by law, to both counties and incorporated towns in the 
State. It has never been contended by any one that a municipal cor¬ 
poration could not be authorized by a special law to make contracts, 
and levy taxes to meet them. In fact, the purposes for which these cor¬ 
porations might incur obligations in the form of contracts, under the 
Constitution, were as variant as the powers conferred on these bodies— 
some, for instance, were authorized to contract for waterworks and gas, 


352 


TENNESSEE CONSTITUTIONAL LAW. 


others not; some were authorized to establish a system of municipal 
common schools, others were not. Yet it was never conceived, we take 
it, that these powers were void, or that in any case they were to be con¬ 
ferred by a general law, equally authorizing any other municipality to 
do the same. This is the rule as to corporations created under the Con¬ 
stitution of 1870, but is one of the material changes introduced into 
our system by that Constitution. So, under the same authority, the 
various counties of the State might be authorized singly to contract for 
any public work legitimately a county purpose, and to levy a tax to 
meet the obligation thus incurred, or issue its bonds, by way of antici¬ 
pating its revenues, as a mode of doing the thing authorized, without 
at the same time every other county, that might not have need for any 
such work, to do the same thing. Such has been the uniform practice 
under the Constitution of 1834, down to the adoption of the Constitu¬ 
tion of 1870, and, so far as we know, never questioned. Several hun¬ 
dred such acts are cited by counsel, fourteen of which were passed in 
1837, only three years after the adoption of the Constitution of 1834. 

“Such authority to contract on the part of counties and incorporated 
towns can not be fairly included under the terms of art. 11, sec. 7, of 
the Constitution of 1834. That section is in terms only a prohibition 
against granting special privileges to individuals, or suspension of a 
general law for the benefit of individuals, or grants of rights, privileges 
or immunities or exemptions to individuals, other than those granted to 
all other members of the community existing under like conditions. 
But these prohibitions as to privileges can have no rightful application 
to the contracting obligations by which burdens are self-imposed by 
counties and incorporated towns. They are neither within the spirit or 
letter of this clause of the Constitution. The only limitation imposed 
upon the legislature as to the power of taxing counties, or their taxing 
themselves, is that the tax shall be for a county purpose. When such 
a purpose is to be carried out, the legislature may authorize the several 
counties and incorporated towns to impose the necessary taxes to meet 
the burden thus contracted. The language is, the several , not any 
county; that is, each for itself may be so authorized to tax, in such 
manner as shall be prescribed by law. ... In this view of the 
question, we see no constitutional objection to the law of 1867, which 
simply authorized the counties through which this railroad ran to con¬ 
tract to aid in the work; nor any necessity that any other counties, 
through which it did not run, having conferred on them the same 
power. . . . The language used, 'authorizing the several counties 

and incorporated towns to impose taxes for county and corporation pur¬ 
poses,’ very clearly implies that the county purpose for which one may 
tax may be peculiar to one county and not to another; and such, we 
know, is practically true.’ . . . 


TAXATION BY COUNTIES. 


353 


“We think it certain that the Constitution of 1834 did not intend that 
all local improvements for county purposes, which might be deemed neces¬ 
sary or proper by any county, should only be authorized by a general 
law. On the contrary, these municipal divisions of the State were under¬ 
stood and well known to have different wants, the one from the other. 
The evil under the Constitution of 1796, as shown in the case of Marr v. 
Enloe, was that all lands in the State were required to be taxed in 
such a manner that no one hundred acres should be taxed higher than 
another, and the County courts were not authorized to tax at all for 
county purposes. To remedy this last, the Constitution of 1834 pro¬ 
vided that they might tax as authorized by law for county purposes, and 
as these purposes in one county might require one rate, and in another 
a different one, the legislature has left the amount to these local quasi 
legislatures, only fixing the limit beyond which they should not go, usu¬ 
ally not beyond the amount of the whole sum levied for State taxes. 
But this shows that no general law was possible on this subject that 
could by a general rule meet the wants of every county, and so it was 
left to the local discretion of the magistracy of the couuty to fix the 
amount to be levied in each county, as their wants might demand. In 
this way each county may be authorized to incur such liabilities as its 
immediate interest might demand, but there could be no need that all 
the other counties should have the same rule applied to them, they hav¬ 
ing no such interest to subserve. . . . 

“ To recur for a moment to the language of the Constitution giving the 
authority to tax themselves, by the action of the legislature, to counties 
and corporations, we think its terms indicate definitely that such power 
might be conferred in any particular case on any one or more counties. 
It is: ‘The several counties and incorporated towns in this State/ The 
word ‘ several ’ is defined by Mr. Webster—‘each particular, or a small 
number, singly taken/ This being so, the plain meaning of the words 
would be that each particular county, or a small number, or any number 
of the counties, singly taken, may be so authorized. If the power to 
tax in any particular case may be conferred on a smaller number than 
the whole number in the State, or on one, there can certainly be no 
reason why the power to incur an obligation for which the tax became 
necessary should be required to be given by a law more general than the 
one that authorized the taxation to meet the obligation thus incurred. 

The case of R. H. Wallace v. The County Court of Tipton 
County, in which different views were expressed from this opinion is 
overruled.” Judges Turney and Deaderick dissented. 75 , 153. 
Lauderdale County v. Fargason. 1881. 


23 


354 


TENNESSEE CONSTITUTIONAL LAW. 


Bonds—Enabling Act Annulled by Constitution of 1870 Adopted 
Thereafter—Contract to Issue Same Made Before—Vested Rights—Do¬ 
nation—Interest—Usury—Partial Laws. — J. M. DICKINSON, Sp. J., held: 
“Chapter 50, Acts 1869-70, sec. 8, empowering Haywood County to issue 
bonds in aid of railroad construction upon a majority vote was annulled 
by ” this section. u If the power to issue bonds under the enabling act has 
not been exercised, and no binding contract has been made to issue them 
before the annulling Constitution goes into effect, then the exercise of 
such power thereafter is unauthorized and void; but if such contract 
has been made anterior to the adoption of such Constitution, bonds 
delivered in pursuance of such agreement subsequent to such adoption, 
are valid. . . . Sec. 8 of ch. 50, Acts 1869-70, empowering Haywood 
county to issue bonds in aid of railroad construction , authorized, by 
implication, the county to subscribe for stock, to be paid for by said 
bonds, and the county having voted to issue the bonds therefor, and the 
County court having agreed to subscribe for the stock and to issue the 
bonds, and the railroad company having accepted such subscription and 
agreement to deliver the bonds, all of these things having been done 
before the Constitution of 1870 went into effect, such rights became 
vested as could not be affected by the new Constitution, and the bonds 
delivered after its adoption are valid. If a donation of bonds be 
authorized, and it is the duty of the County court to issue the bonds 
upon a favorable vote, and an agreement is made by the County court 
to issue the bonds, which is accepted by the railroad company, and the 
bonds are issued in pursuance of such agreement, though after the 
adoption of the annulling Constitution, they are valid in the hands of 
an innocent purchaser. Bonds issued pursuant to an act authorizing 
them to bear interest, lawful at the place where they are payable, are not 
usurious on their face, if the interest contracted for was lawful at the 
place of payment, though it be in excess of the rate allowed in this 
State; and such a law is not a partial law, and is constitutional.” 87 , 
781. Nelson v. Haywood County. 1889. 


Power of County to Levy Tax—County Purposes—Police Duties— 
Court Expenses, Etc.—F reeman, J.: “By the Act of 1837, carried into 
the Code, sec. 1 4:163, ‘the County courts are required, at the first term 
in every year, to impose and provide for the collection of the tax for 
county purposes, and fix the rate thereof/ etc. This levy is made in 
pursuance of the Constitution, art. 2, sec. 29, giving power to counties 
and municipal corporations to levy taxes for county and corporation 
purposes. It is obvious from this clause of the Constitution that the 
only taxes the County courts can ever levy are such as may be levied 
for county purposes. These purposes are to meet such changes in the 


1 M. & V., 489, 



TAXATION BY MUNICIPAL CORPORATIONS. 


355 


way of expenditure as by law are fixed upon the counties, and apper¬ 
tain to the general administration of county affairs—police duties, the 
expenses of courts and the like.” 73, 709. N. & C. R. R. Co. v. Frank¬ 
lin County. 1880. 

In Certain Local Matters Counties Act Under Delegated Authority 
Only. — Andrews, J., held: “The counties, exercising in certain local 
matters the sovereign power of the State, act not in virtue of any 
inherent authority as corporations, but under a delegated authority, 
within the limits prescribed by the Constitution and laws which consti¬ 
tute their charter.” Thompson's Tenn. Cases, p. 312. Hunter v. Camp¬ 
bell County. 1869. 

County as Stockholder , Etc. 

County Court—Contract for Public Bridge Unauthorized, When.— 
Wilkes, J., held: “A contract between a county and a railroad com¬ 
pany, entered into without the assent required by the Constitution of a 
three-fourths majority of the people expressed at an election held, pur¬ 
suant to law, 1 for that purpose, is unauthorized and void. Which pro¬ 
vides that, in consideration of a stipulated sum to be paid by the county, 
the railroad company shall build a combined railway, wagon, and foot 
bridge over a stream for its own and the public use, and that the rail¬ 
road company shall forever keep the bridge in repair, and shall con¬ 
struct certain lines of railway, and shall concede to the county the fee 
in certain portions of the right of way, and also for the public benefit, 
the use of its track by other companies, and special freight rates for 
particular products. By such a contract, the county becomes, in viola¬ 
tion of the Constitution, a stockholder with the railroad company, and 
loans its credit to the railroad enterprise.” 

In delivering the opinion Judge Wilkes said of the third clause of 
this section: “ It is evident that the letter and spirit of this provision 

is that the county shall not be a stockholder nor joint owner with any 
company, association, or corporation in any enterprise or improvement, 
although it may be one in which the county may be otherwise author¬ 
ized to enter.” 92, 43. Colburn v. Railroad. 1894. 

Taxation by Municipal Corporations. 

Legislature May Withhold Power to Assess Taxes.—COOPER, J.: 
“ The power to delegate would necessarily imply the possession of that 
power by the body which delegates it. And how the authority to dele¬ 
gate an essentially legislative power can deprive the legislature of that 
power, it is difficult if not impossible to conceive. Such a result can 
not be deduced by any rule of logic, or natural reason. If, therefore, 
local powers of taxation come only from the legislature by delegation, 


1 M. (Sc V., 1452-3. 



356 


TENNESSEE CONSTITUTIONAL LAW. 


it necessarily follows, as a corollary, that the legislature may at pleas¬ 
ure, whenever in its opinion the public exigency requires, withhold the 
grant, and exercise the power itself. There is nothing in the Constitu¬ 
tion which prevents this result. Although municipal corporations 
existed at the adoption of the Constitution, and are recognized by it, 
yet no provision's made for securing their existence, or perpetuating 
any of their forms or rights, as in the case of the County courts. Pope 
v. Phifer. On the contrary, municipal corporations were, at and before 
that time, as they have always been, subject to the absolute control of 
the legislature. Instead of throwing any restraint over the exercise of 
this unlimited power, the Constitution, by art. 11, sec. 8, expressly says 
that the general assembly may provide, by general laws, for their 
organization, ‘which laws may at any time be altered or repealed/” 
Judges Freeman and Turney dissented. 70, 443. 1 Luehrman v. Tax¬ 
ing District of Shelby County. 1879. 

Taxation—Local Assessments—Meaning—History of This Section.— 
Freeman, J.: “If the State government is bound by the limitations of 
section 28 in its mode of collecting revenue for the general purposes 
and duties imposed on that government, it would seem equally clear 
that the municipal government of each town was equally bound by the 
restrictions imposed in section 29 of same article, and that for these 
purposes it could only impose taxes; and imposing such taxes, l all 
property shall be taxed according to its value , and upon the principle 
established in regard to State taxation / In other words, there being but 
one kind of taxation authorized by the Constitution for the raising of 
revenue for the general purposes of the State government, and that reg¬ 
ulated by art. 2, sec. 28, that there was but one mode or kind of taxa¬ 
tion for corporation and municipal purposes, and that regulated by sec¬ 
tion 29 of that article, and to be paid on property upon the same ‘ prin¬ 
ciples established in regard to State taxation / Can it be conceived that 
the convention intended to provide that the incorporated towns of the 
State, in raising the money that should pay the salary of a mayor or of 
a tax collector, a sum amounting at most to a few thousand dollars, 
required they should do it by taxation, and that in levying such taxes 
all property should be taxed according to its value, upon the principles 
established in regard to State taxation, yet left these bodies free to 
adopt the principle of 1 local assessment / and impose a burden of a 
million and a half dollars ($1,500,000) on a comparatively small body of 
owners of property on their leading streets? This would be to regulate 
and restrict a minor matter, and leave a far greater and more tremendous 
power of the same kind with no limitation whatever upon it. 

The history of the introduction of this 29th section into our Constitution 


1 See same case, art. 2, sec. 17, p. 280; art. 7, 6ec. 4; art. 11, sec. 8. 



TAXATION BY MUNICIPAL CORPORATIONS. 


357 


will serve to strengthen the view we have taken, that is, that the entire 
taxing power was intended to be regulated. It had been held in Marr 
v. Enloe, 1 Yer., 452, that this power, being in its nature legislative, and 
an attribute of sovereignty, could not be delegated; that it could not 
more be done than could the power to enact laws be delegated. This 
decision was made on the Act of 1827, ch. 49, which enacted ‘that the 
Court of Pleas and Quarterly Sessions in the several counties of this 
State, a majority of twenty of the acting justices being present, shall, 
at the first court in each year, levy a tax to meet the current expenses 
of their county for the ensuing year upon all polls and property subject 
to taxation/ This act was held to be void. The convention in 1834, to 
meet this decision made in 1830, inserted in the Constitution the 29th 
section, and authorized a delegation of this sovereign power to counties 
and incorporated towns, for corporation and county purposes, but im¬ 
posed the same restrictions and limitations upon the exercise of the 
power that were imposed on the legislature in laying taxes for State 
purposes. And in this we have no question they intended to fasten 
these limitations of equality and taxation according to value on the 
counties and incorporated towns in precisely the same way, and to the 
same extent, as it had done on the legislature as to State purposes, that 
is, upon the entire power, and not upon it in one form, leaving another 
untouched and unrestrained. . . . 

“We lay down the proposition that taxation, in the sense of the con¬ 
stitutional provisions, and in the form therein prescribed, being the 
legitimate and appropriate mode of providing revenue to discharge the 
general charges upon the State, and upon counties and corporations, 
that the implication is fair, and we think irresistible, that this means is 
imperatively demanded to be used, and imposed upon the government 
by the spirit and meaning of the Constitution, and must be resorted to, 
in all cases falling fairly within the range of what can be denominated 
burdens for State, county or corporation purposes, unless some other 
mode of meeting these burdens is provided in the Constitution, or fairly 
recognized by it. This, as a general principle, we take to be a sound 
and safe rule, and the one that more nearly than any other comports 
with the idea of a constitutional government, with limitations and 
restraints imposed by the people by organic law upon the action of their 
governmental agencies, of each and every kind, and in all departments 
of its machinery.” 56 , 368. 1 Taylor McBean&Co. v. Chandler et al. 1872. 

Rate of Levy. 

Tax Levy in Excess of Rate Levied by the State—When Legal.— 
Nicholson, J.: “It is true, that in reference to taxation for some special 
objects outside of the usual and proper objects of the corporation, as in 


1 See same case. art. 2, sec. 28, p. 314. 



358 


TENNESSEE CONSTITUTIONAL LAW. 


secs. 491c and 1361, the restriction exists that the special taxes shall 
not exceed the rate of State taxation; but this restriction has no appli¬ 
cation to debts contracted in carrying out the ordinary and legitimate 
purposes of the corporation. As to these, the mayor and aldermen con¬ 
stitute the legislative representatives of the inhabitants of the town. 
They have the power to order such improvement or repairs in the street, 
as in their judgment are necessary and proper, for the comfort and con¬ 
venience of their constituents, and to contract such debts therefor as 
may be proper, in their discretion, to accomplish the objects. To satisfy 
the debts so contracted they have ample power to levy and collect the 
necessary amount of taxes. The taxes so levied and collected require 
no special power, nor are they such special taxes as are subject to legis¬ 
lative restrictions. 

“If, therefore, the annual assessment of taxes, at a rate equal to that 
of State taxation, should fail to raise an amount sufficient to satisfy 
debts contracted in the legitimate exercise of their power, such as 
opening or repairing streets, there is nothing in the statute laws 
which would prohibit the corporate authorities from making another 
assessment to pay such debts.” 55, 869. Mayor etc. of Bristol v . 
Dixon et al. 1875. 

May Assess Property Higher Than the State—Uniform Rate. — FREE¬ 
MAN, J., held: “The corporation might assess the property at a 
higher value than the value placed upon it by the State, if it be not 
assessed higher than its actual value, the Constitution providing that it 
shall be levied upon the same principle as the State tax, to wit: At its 
value, and maintaining uniformity.” 76, 636. Fulgum v. Mayor etc. of 
Nashville. 1881. 

Taxing Stock in National Banks. 

Conflict of Laws.— In this case Smith, J., held: “The act of congress 
requires that States shall assess for taxation shares of stock in national 
banks, at the place where the bank is located, and not elsewhere. The 
law of this State, not assessing for taxation shares of stock in national 
banks at the places where the banks are located, is not in conformity 
with the act of congress; and so far as it purports to tax such stocks is- 
void. The State not having taxed shares of stock in national banks, 
located in the State, they are not taxable by the municipal corporation 
of Nashville.” 1 45,601. Mayor etc. of Nashville v. Thomas et al. 1868. 

Act of Congress Considered in Connection With this Provision._ 

McFarland, J.: “It is perhaps not strictly accurate to say, as has been 
said in argument, that the power to impose this tax is derived from the 
act ol congress. The power to impose taxes is a power inherent in the 


1 Overruling what wae decided on this point in Union Bank v. The State. 17 , 500. 



TAXATION BY MUNICIPAL CORPORATIONS. 


359 


government in its sovereign capacity. The Constitution defines this 
power and gives general directions as to the manner of exercising it, 
and bank stocks are expressly enumerated in the Constitution as taxa¬ 
ble. ... We can not see any reason why congress would permit 
the State tax to be imposed, and at the same time exempt the stock 
from taxation for county and municipal purposes. If this species of 
property should bear its just proportion of State taxes, we can see no 
reason in principle why it should be exempted from its just proportion 
of municipal taxes. These banks are certainly as much interested in 
maintaining a city government and police regulations for their own pro¬ 
tection, as the individual citizens, and should bear their just part of the 
burden of maintaining them, unless they are exempted by some positive 
law. Did congress intend by the act in question to exempt these stocks 
from taxation for municipal purposes? The language is, ‘that nothing 
in this act shall be construed, etc., to prevent all the shares, etc., from 
being included in the valuation of the personal property of such person 
or corporation in the assessment of taxes imposed by or under State 
authority/ We understand that the taxes imposed by the city authori¬ 
ties of Nashville are imposed ‘under State authority’—as much so as 
the State taxes proper. This proviso in the act of congress was enacted 
with a view to the laws of the States, and to the fact that the cities and 
towns where the banks are usually located always maintain a city gov¬ 
ernment by taxation; and we think it can not be maintained success¬ 
fully that congress intended to exempt this stock from taxation for 
municipal purposes. The fact that the act contains also a proviso that 
nothing in it shall be construed to prevent real estate owned by such 
corporations from being taxed for State, county, or municipal purposes, 
as other real estate, sustains this view.” 54, 401. 1 McLaughlin v. 
Chadwell et al. 1872. 


Corporation Purposes. 

Power of a Municipal Corporation to Take Stock in a Manufacturing 
Company—Corporate Purpose Incidentally Discussed.— After quoting 
from the Act of 1817, creatiug the corporation of Gallatin, McKinney, 
J., says: “Under the foregoing power ‘to lay and collect taxes’ the 
authority to issue the bonds in question is claimed. It is scarcely neces¬ 
sary to repeat the familiar principle that a corporation is the creature 
of the law, possessing no power or authority except such as is expressly 
granted by the charter, or as is necessarily implied. And the simple 
statement of this principle would seem to be sufficient for the decision 
of the question before us. No argument can be necessary to show that 
the authority to purchase stock iu a manufacturing establishment, or to 
issue bonds for the payment thereof, can not be derived from the power 


See same case, art. 2, sec. 28, p. 317. 



360 


TENNESSEE CONSTITUTIONAL LAW. 


of taxation conferred by the charter. No doubt can be entertained as 
to the nature or extent of the power ‘ to lay and collect taxes/ contained 
in the charter. 

“The existence of such a power in the corporation was indispensa¬ 
ble as a means to the accomplishment of the end and object of its crea¬ 
tion—the government and necessary police regulations of the town. 
The powers of a corporation, being the exercise of a delegated authority, 
are to be strictly construed; and this rule applies with greater force to 
the power of taxation, from its very nature and liability to abuse. In 
ascertaining the extent of the power ‘to lay and collect taxes/ delegated 
to a corporation, we must look to the general powers specifically granted, 
and such as result from necessary implication, to the various objects 
contemplated by the charter, and the duties enjoined therein; and as 
far as the proper exercise of these powers and the accomplishment and 
performance of these various objects and duties may require, but no 
further, may the power to raise money by taxation be exercised under 
the charter. If it be desired to possess the power to any greater extent, 
or for any other purpose, a further delegation of the power must be 
sought from the legislature. 

“This case does not require that we should go into the question, 
What is ‘a corporation purpose 7 in the proper sense of our Constitu¬ 
tion and laws?—a question certainly of no easy solution, and one that, 
generally speaking, may be answered more readily negatively than 
affirmatively. We are not, therefore, called upon to determine whether 
or not in the case before us, or in any supposable case, the purchase of 
stock in a ‘cotton and woolen manufactory 7 is a ‘corporation purpose. 7 
It may be remarked, however, that if it were held to be so, it would be 
difficult, perhaps, to imagine any speculation that might not be so regarded. 

“But, without intending to decide a question not properly arising 
upon the record, we simply determine that the authority attempted to 
be exercised in the present case, of subscribing for stock and issuing the 
bonds of the corporation in payment thereof, was wholly unauthorized 
by the charter. And hence it results that the bonds are utterly void. 
Being so, we think it clear that the complainants can not be compelled 
to accept them. 77 33, 715. Cook & Steadman v. Sumner Spinning Co. 
1854. 

Power of Municipal Corporation to Subscribe for Stock in Railroad 
Corporation and to Issue Bonds and Levy Taxes for Payment Thereof— 
Railroad a Corporation Purpose.— This bill was filed on behalf of com¬ 
plainants to restrain the corporation of Nashville from issuing bonds for 
the purpose of raising money to pay for twenty thousand shares of stock 
subscribed to the Nashville & Chattanooga Railroad Company. 

Turley, J.: “The town of Nashville was incorporated by an act of 
the legislature passed the 11th day of September, 1806, with such 


TAXATION BY MUNICIPAL CORPORATIONS. 


361 


powers delegated to the corporation as were then deemed meet and 
proper for its condition. ... The Act of 1845 merely authorized 
the corporation to take stock in the railroad, without giving power to 
raise the money for its payment. We think that there is nothing uncon¬ 
stitutional in this provision of the statute. If the corporation had 
money, as it might well have, there can be no good reason why it 
should not be permitted to vest it in such stocks as might be supposed 
would be profitable. Individuals so vest their money, and why should 
not a corporation be permitted to do sol It has been the constant 
practice to permit private corporations to vest their money in stocks; 
why may not a public corporation be likewise authorized to do sol There 
is no reason against it. It is no argument against it to say that such 
investment is not a corporate purpose. Why is it not a corporate pur¬ 
pose 1 If a corporation have a surplus fund, is it not a corporate pur¬ 
pose to have it vested to the best advantage? Is it not for the benefit 
of the corporation, and, therefore, a corporate purpose, that this fund 
should be securely vested, and at the best profit? If it be, why may it 
not be vested in railroad stock, if the corporate authorities think it best? 
. . . But the Act of 1847 goes a step further than the Act of 1845, and, 

in addition to the power then given to subscribe for stock, authorizes 
the corporation to borrow money for that purpose, upon the faith of the 
corporation, by hypothecating its taxes, or, if to them it shall seem best, 
to issue bonds of the corporation for the whole or any part thereof. 

“Now, it is contended that this statute authorizes an appropriation, 
by taxes, for this subscription of stock, and that this railroad is not a 
corporation purpose, and that, therefore, the legislature can not, under 
the provisions of the 29th section of the 2d article of our Constitution, 
authorize the corporation of Nashville to levy and collect taxes for the 
payment of liabilities created by this subscription. This presents a 
question not entirely free from difficulty, and is, indeed, the only one 
worthy of serious consideration in the case. . . . The reason why 

this clause was embraced in our Constitution those contemporaneous 
with its formation know to have been that doubts had been suggested 
by the highest judicial tribunal of the State as to whether the taxing 
power could be delegated by the legislature to the counties and to the 
incorporated towns, and the clause was intended to remove these doubts. 
It does nothing more, however, in enlarging the powers of the legisla¬ 
ture than it is believed it possessed before upon this subject, and noth¬ 
ing more in restricting the exercise of the power, on the part of the 
counties and corporate towns, to taxation for county and corporate pur¬ 
poses than existed before. But, be this as it may, we think that the 
legislature most clearly has no power to delegate to a county or corpo¬ 
rate town the power of levying taxes for any other than county or cor¬ 
poration purposes. Aud that if this Act of 1847 is to be considered as 


362 


TENNESSEE CONSTITUTIONAL LAW. 


an act conferring on the corporation of Nashville the power to tax its- 
corporators for the purpose of paying for this subscription to the stock 
of the Nashville & Chattanooga Railroad, and that the erection of said 
road is not a corporate purpose of the town of Nashville, then the act 
is unconstitutional. . . . 

“ Perhaps I might divide corporate purposes into two classes—those 
which are direct, and those which are indirect. A direct corporate pur¬ 
pose might be styled to be one which, in its direct and immediate con¬ 
sequences, operates upon the interests of the corporation. Such would 
be all police regulations for the government of the town, the promotion 
of good order, the protection of its citizens from the lawless, the sup¬ 
pression of vice, the opening and preservation of highways, streets, and 
alleys, the erection of market-houses and hospitals, supplying the town 
with water, etc. An indirect corporate purpose might be styled to be 
one which does not, in its direct and immediate consequences, operate 
upon the corporators, but the beneficial effects of which are to be 
experienced in a remoter degree, and which have to be traced to their 
source before they can be duly comprehended and appreciated. Such 
are all facilities of canals, roads, the improvements of rivers by which 
their navigable use is extended, by all which the commercial interest of 
a town is increased and expanded by reason of the increased facilities of 
communication thus furnished, by means of which the wealth of its 
population, individually and collectively, is increased, with a conse¬ 
quent increase of the comforts and enjoyments of life. 

“It is true that these improvements must have some connection 
with the corporate town, claiming them as corporate purposes, more 
direct than that which would result from the general increased pros¬ 
perity of the country by reason of such improvements, made without a 
direct reference to, or in direct connection with, the town. That is, the 
improvement claimed to be a corporate purpose of the character under 
discussion, must have such relation to the town as to be the medium 
through which this prosperity is attained. It must begin or terminate 
at the town, or pass through or so near as to be capable of affecting its 
direct interests. It would seem to be an incontrovertible truth that a 
corporate town is deeply interested in the making of any road, or other 
means of transportation and travel whereby the facilities of its com¬ 
merce are increased j and, if it be so interested, why shall it not become 
a corporation purpose to have them made? It would really seem almost 
useless to argue in favor of it. Is there anything illegal in it? Is there 
anything against good morals in it? Is there anything against public 
good in it? Surely not. A town is situated ten miles from a navigable 
stream; it is obvious that it must be a matter of great importance to 
the town, its commerce and general prosperity, to have a railroad or 
macadamized road to this river. It concerns no one else but this town, 


TAXATION BY MUNICIPAL CORPORATIONS. 


363 


and no one else will make it. Shall it not become a corporation purpose 
of this town to make it if it be able? Surely no one will deny but that 
it may. Distance can not change the principle. If it can become a 
corporation purpose to make the road ten miles, so it may, if like reason 
exist, and there be like ability, to make the road twenty, thirty, or any 
number of miles, there being no limit save the extent of the ability of the 
corporation and the discretion of the legislature in granting it the power. 

“If a corporation may make the road, may it not join with others to 
make it? If the undertaking be too expensive to be carried into execu¬ 
tion by the corporation itself, or if others be desirous of uniting with it 
for the effectuating of the design, why may they not unite? Again, it 
may be asked: Is there any wrong in this? Is there anything against 
the public good in this? Is there anything against law in this? Surely 
not. And if the majority of the corporators are desirous of doing this, 
and the legislature will grant them the privilege of doing it, upon what 
principle shall the minority interfere and prevent it? Minorities are 
protected against the illegal acts of majorities, but they must submit to 
those which are legal. ... If the making of this road can be con¬ 
sidered a corporation purpose, there is no pretense for holding the Act 
of 1847, which authorizes the corporation of Nashville to pay for its 
subscription to the road by a loan effected upon its credit, and a mort¬ 
gage of its taxes, or by the issuance of the bonds for the same purpose, 
to be unconstitutional. And we are not able to comprehend why the 
making of this road should not be a corporate purpose of the town of 
Nashville as well as the making of a road running from the square to 
the waterworks above the town. The only distinction is that the one is 
longer than the other, and will cost more money; but this, as to princi¬ 
ple, is a distinction, and not a difference. In this view of the case we 
are sustained by the decision of the Supreme court of Virginia, in the 
case of Goddin v. Crump, 8 Leigh, 120, and by the decision of the Supreme 
court of Connecticut, in the case of the City of Bridgeport v. Housatonic 
Railroad Company, 15 Conn., 475, in both of which cases the questions 
preseuted for the consideration of the court were the same in principle 
as those discussed in this case, and received the same determination. 

“We then hold that the legislature of Tennessee had the constitu¬ 
tional power to authorize the corporation of Nashville to take stock in 
the Nashville & Chattanooga Railroad. That the making of this road is 
a legitimate corporate purpose of the corporation, and that it is legally 
authorized to pay for its subscription to the stock of said road in either 
of the modes pointed out by the Act of 1847.” 1 28 , 266. Nichol v. 

Mayor etc. of Nashville. 1848. 


1 The following extract from the preliminary observations made by Judge Turley in deliver¬ 
ing the above opinion are in point: J « .V 

“ In the State of Tennessee a corporation is the creature of the legislative department of the 
government: it exists solely and alone by virtue of its act of incorporation, and it can exercise 



364 


TENNESSEE CONSTITUTIONAL LAW. 


What is Corporation Purpose — No General Rule.— McKlNNEY, J.: 
“ Every attempt to lay down an exact general rule, by which to deter¬ 
mine what is ‘a corporation purpose/ must prove nugatory. The ques¬ 
tion must, necessarily, be decided in view of the facts of each particular 
case. And while we do not mean to say that the judgment of the local 
government of the town is to be taken as conclusive of the question 
whether the object proposed be a legitimate corporation purpose, yet, 
we think it might, in general, be safely taken as prima facie evidence 
of the fact; for it will perhaps be found, in most cases, that an intelli¬ 
gent board of aldermen are more capable of forming a correct judg¬ 
ment as to what measures are of a nature to promote, more or less 
directly, the general interests and prosperity of the town, than any 
other tribunal.” 40, 322. 1 McCallie v. Mayor etc. of Chattanooga. 1859. 


Waterworks, Gas Companies, Parks, Pest Houses, and Libraries, All 
Corporation Purposes.— Nicholson, J.: “The principle that governs in 
determining whether an appropriation is for a corporation purpose or 
not, may be clearly illustrated by reference to what a corporation may do 
in the preservation of health of its inhabitants. The preservation of 
health is universally conceded to be a legitimate corporation purpose. 
To carry out the power to preserve the health of a city, money may be 
appropriated to secure a constant supply of wholesome water; hence, 
waterworks outside of the city, from which good water may be con¬ 
veyed into the city, may be erected and operated either in whole by the 
city or in connection with others. In like manner, it is now well under¬ 
stood that public parks in the vicinity of cities contribute essentially 
to the health and comfort of their inhabitants, and hence money may be 
legitimately appropriated for these purposes. So, likewise, as to the 
erection of hospitals and pest-houses outside of a city. The preserva¬ 
tion of peace and order within the limits of a city, is a clear corporation 
purpose. To effect this object as well as for the comfort and con¬ 
venience of the inhabitants in the night-time, the lighting of the streets 
is a proper object or corporation purpose; and if this can be done more 
cheaply or more efficiently by gas than by lights from oil in lamp posts, 


no powers but such as are expressly granted to it, and such as are the result of necessary and 
proper implication. This principle necessarily follows from the relation a corporation occupies 
to the State; it is not, as has been justly remarked in the argument of the case, a regnumin regno, 
but it is a thing created by legislative enactment, to which certain powers of action are given for 
trade, for manufacturing, for municipal government, for education, or for any other legitimate 
purpose for which a combination of capital, or of intellect, or of numbers, may be desired. Its 
whole action must necessarily be the result of the authority conferred upon it, which may be 
limited or extended as the legislature, in its wisdom, may think proper to strengthen or weaken 
it, by delegating or withholding those powers which are inherent in the State, or are only to be 
exercised by its individual citizens without a charter of incorporation. The powers of corpora¬ 
tions being exercised, then, under delegated authority, are to be strictly construed. So are all 
delegated powers, whether they be of a private or public character; aud if anyone thinks that 
this principle is of modern discovery he is greatly mistaken. It was as well known to my Lord 
Coke and his successors in the common law as it has ever been to any expounder of the Constitu¬ 
tion of the United States, and the principle is as well, if not better, established by the decisions 
of courts of England as it has been by the political debates at the hustings and in congress, or by 
the Supreme court of the United States.” 
x See same case, art. 1, sec. 20, p. 192. 



TAXATION BY MUNICIPAL CORPORATIONS. 


365 


it is within the legitimate province of the corporation to obtain gas 
from works located out of the city, either erected by the city corpora¬ 
tion or by a gas company. In all these cases the appropriations are 
justified upon the principle that the object to be accomplished is a 
legitimate corporation purpose, and the means adopted for their accom¬ 
plishment are the necessary and proper means for carrying them out.” 
It was held in this case that an appropriation to purchase a library for 
the university was for a corporation purpose. Judges Freeman and 
McFarland dissented. 65, 173. East Tennessee University v. Mayor 
etc. of Knoxville. 1873. 

Public Schools.— The establishment of public schools is also a cor¬ 
poration purpose. McFarland, J., dissented. 55, 850. Waterhouse 
et al. v. Board etc. of Public Schools. 1874. 

Again Held that Public School is a Corporation Purpose.—COOPER, J.: 
“The point is made by the complainants that to establish and provide 
for a system of free public schools, is not a corporation purpose. It is 
a little curious that such a point should be made at this time, when a 
system of free public schools has been in operation, supported by 
municipal taxation, in several of the principle cities of this State for 
over a quarter of a century, and when, for at least twenty years, many 
of the counties of this State have been, under a general law, aiding the 
public schools by local taxation. ... If any one thing can be con¬ 
sidered settled by the common consent of the people, the legislature 
and the courts, it would seem to be the fact that secular education is a 
State purpose, and as such, subject to the control of the legislature, of 
the counties and the incorporated towns of the State as branches or arms 
of the State government. The authorities, our own among the number, 
are all one way.” 83, 639. 1 Ballentine v. Mayor etc. of Pulaski. 1885. 

Civil Districts Not Incorporated Towns. 

This Provision Inserted in the Constitution of 1834 and 1870 Because 
of the Opinion in the Case of Marr v. Enloe. — SMITH, J.: “The question 
proposed is not open in Tennessee. It was closed by the judgment of 
the Supreme court in 1830, and soon after again by the convention of 
1834, which framed the present Constitution. The Constitution, by sec. 
3, art. 2, ordains that ‘the legislative authority of the State shall be 
vested in a general assembly, which shall consist of a senate and house 
of representatives, both dependent upon the people/ In the case of 
*Marr v. Euloe, decided in 1830, the question came before the Supreme 
court, and it was there held that the power of taxation is in its nature 

* See same case, art. 1, sec. 8, p. 62; art. 2, sec. 2, p. 262; art. 2, sec. 17, p. 277; art. 2, sec. 28, p. 
333; art. 11, sec. 8; art. 11, sec. 12. 

3 See ante, sec. 28, note, p. 332. 



366 


TENNESSEE CONSTITUTIONAL LAW. 


legislative, and is incapable of delegation. So essentially legislative is 
the power held to be, that it can no more be delegated than can be dele¬ 
gated the power to enact statutory laws. This decision was made upon 
the Act of 1827, ch. 49, sec. 1, which enacts ‘that the Court of Pleas and 
Quarter Sessions, in the several counties in this State, a majority of 
twenty-five of the acting justices being present, shall, at the first 
court in each and every year, levy a tax to meet the current expenses 
of their county for the ensuing year upon all polls and property subject 
to taxation/ Upon the bench of the Supreme court, when this decision 
was made, were Robert Whyte, Catron, and Greene. The mention of 
their names carries with it great authority. It may be said, with a 
truth which will receive the assent of the enlightened lawyers of Ten¬ 
nessee, that these men, as much and probably more than any other 
of the judges who have adorned the past history of the Supreme court, 
laid the foundations of the jurisprudence of Tennessee, and gave to it 
the great measure it has of consistency, solidity, and truth. 

“Four years after the decision of Marr v. Enloe the convention of 
1834 was held. The decision was well known, and that the rule deduced 
by it was the constitutional law of the State. The convention had the 
power to abrogate the rule totally, or to subject it to partial modifica¬ 
tion. It chose the latter, and authorized the legislature to delegate the 
power of taxation to the counties and incorporated towns. This was 
done by the 29th section of the 2d article of the Constitution. The con¬ 
vention did not mean to go further. The implication is irresistible, that 
the expression of the authority to delegate the power to the counties 
and towns, is an absolute exclusion of the authority to delegate the 
power to any other agency. It is impossible to doubt that the conven¬ 
tion designated the counties and incorporated towns, and authorized the 
power to be conferred on them, for the reason that, without such desig¬ 
nation, the power of taxation would be restricted to the legislature 
only. The purpose of the 29th section was to authorize the legislature 
to confer the power of taxation on the counties and incorporated towns, 
and no other or further. . . . It is conceded on all hands that the 

civil districts of the counties are not, in the sense of the Constitution, 
incorporated towns, and that the fact that they are invested by the 
school law with some of the capacities of corporate bodies, does not 
make them incorporated towns. By no fair sense of the words, nor by 
no existing similitudes, nor by any possible construction of the Consti¬ 
tution, can the civil districts be held to be incorporated towns. 

“Were the question original and unsettled, much weight would be 
due to the persuasive and powerful arguments of the counsel for 
defendants, drawn from a comparison of the Constitutions of 1796 and 
1834 j and from the principle that the legislative body is universal and 
absolute, except where expressly, or by cogent implication, limited by 


TAXATION BY MUNICIPAL CORPORATIONS. 


367 


■constitutional restrictions, and from the duty enjoined upon the legisla¬ 
ture by the Constitution to cherish and promote literature, science, and 
common education. Much weight, also, would be owing to the adverse 
judicial opinions of the courts of the sister States of the Union. But 
the decision of this court must be governed by the principles established 
by the law of Tennessee. Wisely or unwisely, and that is not for us to 
say, the constitutional law of Tennessee is that the taxing power is 
essentially legislative, and incapable of delegation to other than the 
counties and incorporated towns. And so we declare. And having no 
doubt that it is so, we hold that the fourteenth section of chapter 83 of 
the Act of March 14, 1868, and the tax assessed pursuant to it by the 
board of education of the twelfth civil district of Montgomery county, 
are unauthorized by the Constitution and void.” Andrews, J., dissented. 
46, 129. Kessee v. Civil District Board of Education et al. 1868. 

Levy of Tax by School Districts Unconstitutional—Proceedings in 
Convention of 1870—Case Criticised: Nichol v. Mayor etc. of Nashville 
—Distinct Departments of Government. — The question was the validity 
of that part of the Act of 1873 entitled “An Act to establish and main¬ 
tain a uniform system of public schools in Tennessee,” which conferred 
upon school districts power to levy and collect taxes for common school 
purposes. J. W. Judd, Sp. J.: “An elementary principle of government 
in the States of our Federal Union is, that the whole sovereignty of the 
people rests with and is invested in the legislature, except so far as 
restricted by the powers delegated to the United States and by the con¬ 
stitutions of the States. This principle is earnestly invoked by the 
respondents, and they ingenuously argue that under it ample authority 
is found for the act in questiou. We have felt the full force of the argu¬ 
ment, and do not by any means underrate its persuasive power, but it 
must be remembered that directly and inseparably linked with this is 
the further idea that our State government is, by the Constitution, 
divided into three separate and distinct departments—the legislative, 
executive, aud judicial—and no person belonging to one of these de¬ 
partments shall exercise any of the powers properly belonging to either 
of the others, except in cases directed and permitted. Art. 2, secs. 1, 2. 
Aud, further, that the people, having delegated to these three depart¬ 
ments of government certain powers, have thereby deprived themselves 
of the right to exercise them; chief among which is the power delegated 
to the legislature of taxation. The power to levy and collect taxes is, 
by our Constitution, expressly delegated to the legislature, aud the right 
to redelegate this authority must be found in the Constitution itself, or 
it does not exist. Guided by this postulate, let us examine the Consti¬ 
tution and see if authority can be found for the act in question, so far 
as it undertakes to delegate the power of taxation to the defendants in 
the manner and under the circumstances of this case. 


368 


TENNESSEE CONSTITUTIONAL LAW. 


“Defendants say such can be found in art. 11, sec. 8, art. 2, sec. 29, 
and art. 11, sec. 12. That part of the first named, which, by their argu¬ 
ment, they apply, is as follows: ‘No corporation shall be created, or its 
powers increased or diminished, by special laws, but the general assem¬ 
bly shall provide, by general laws, for the organization of all corpora¬ 
tions hereafter created/ etc. And section 12 provides that ‘knowledge, 
learning and virtue being essential to the preservation of republican 
institutions, ... it shall be the duty of the legislature, in all future 
periods of this government, to cherish literature and science. 7 There is 
certainly, in neither of these quotations, any power given to the legis¬ 
lature to delegate the high and most of all dangerous right of taxation, 
nor can we conceive how it can be said that to obey these mandates of 
the Constitution it is at all necessary that the legislature should dele¬ 
gate or take from itself the least right to levy and collect taxes. If it 
be answered that it is necessary in order to cherish knowledge, litera¬ 
ture and science, to levy and collect taxes, then we reply, let the legis-^ 
lature do this as they are authorized to do. If it be said that the legis¬ 
lature has the power by general laws to create corporations, and if from 
this it is argued that therefore they have the right to empower such 
corporations to levy and collect taxes, and if the legislature, under this, 
can give the power to one it can to all, which, as we have said, involves 
an absurdity. 

“But, conceding all this, the respondents ingenuously insist that by 
putting together that part of sec. 8, art. 11, above quoted, and sec. 29 
of art. 2, which says that ‘the general assembly shall have power to 
authorize the several counties and incorporated towns of this State to 
impose taxes for county and corporation purposes respectively as shall 
be prescribed by law/ that this gives the legislature the power, first, to 
create corporations by general laws and call them incorporated towns, 
and then possess them with the power to levy and collect taxes for cor¬ 
poration purposes; therefore, they conclude the act in question is con¬ 
stitutional and valid. The fault with this argument is that it assumes 
too much. By the same line of reasoning, the legislature could create 
incorporated towns out of the whole territory of the State by subdivid¬ 
ing it into parts, and thus delegate to them the whole power of taxa¬ 
tion and of government, and divest itself of the exact duty and respon¬ 
sibility entrusted to it by the people in the Constitution. Can it be for 
one moment believed that the people would have ever ratified our Con¬ 
stitution by their votes, if they had dreamed that such a construction 
as this would be put upon it? Hardly. Every step in the many direc¬ 
tions only makes the succeeding one more easy and disastrous, and the 
writer of this opinion must be permitted to say for himself that he has 
never been able to give his assent to the judgment of the court in the 
case of Nichol v. Mayor and Aldermen of Nashville, 9 Hum., 252, and 


TAXATION BY MUNICIPAL CORPORATIONS. 


369 


other decisions of like kind, and since the result has been such as to 
bring about the worst financial results to our people, this court will not 
even extend those decisions, unless bound to do so by our solemn oath 
to the Constitution. 

“The power to authorize incorporated towns and counties to levy 
taxes for corporation and county purposes, is the only part of our Con¬ 
stitution which we can find that gives the legislature any power to dele¬ 
gate the right of taxation. This clause appeared for the first time in 
the Constitution of 1834, and was copied in that of 1870. It is a suffi¬ 
cient fact, that in the constitutional convention of 1870, when art. 2, 
sec. 29, was under consideration, Mr. Seay offered an amendment to 
insert ‘ civil districts’ after the word ‘counties,’ so as to give the legis¬ 
lature power to authorize the civil districts to levy and collect taxes, 
but the amendment offered was at once rejected. All the authorities, 
as well as common sense, agree in the rule that language must be 
interpreted in the light of things surrounding the parties using the 
words to be interpreted. When the Constitution of 1834 was framed 
and ratified, there was no such thing in this State as an incorporated 
town other than one of fixed and defined limits, iuvested with powers 
of municipal government, and this for local and police purposes. Such 
was the condition of things in 1870, and such alone is the sense in which 
the ‘incorporated towns’ were used, and to this it must be confined. 
Much authority is cited from other States, which it is assumed holds a 
different doctrine from this, to which we reply, if that be so we prefer 
to read our Constitution as that of the State of Tennessee. In all that 
part of the act in question quoted above, the word ‘town’ is used only 
once, and that in the forty-fifth section, where it is said they ‘shall be 
incorporated towns.’ After this, and in all other places, they are called 
districts, and school districts, and they are districts, being the same as 
the civil districts theretofore existing in Bedford county; and if it can 
be held that the legislature, by simply calling them incorporated towns, 
can invest them with the power of taxation for school purposes, it can 
be done certainly for all purposes—a conclusion to which we can not 
assent.” The part of the act referred to was declared unconstitutional. 
69 , 549. Lipscomb v. Dean. 1878. 

Taxation of Privileges. 

By-law of a Town in Conflict with Constitution and Laws of the 

state.—G reen, J., held: “The by-law of a town, prohibiting all persons 
from retailing spirituous liquors within the limits of the corporation, 
under a money penalty, unless the person obtain a license from the cor¬ 
porate authorities by the payment of a fixed sum, is in conflict with the 
Constitution and laws of the State permitting persons who might obtain 
license as prescribed by those laws to retail spirituous liquors, and 


24 


370 


TENNESSEE CONSTITUTIONAL LAW. 


therefore void, and can not be enforced even against a person who has 
no license from the State.” 20 , 156. Robinson v. Mayor etc. of Frank¬ 
lin. 1839. 

Difference Between Privileges and Property.— McKlNNEY, J.: “It 
must be borne in the mind, that, in regard to the power of taxation 
delegated to the legislature, an important and fundamental discrimina¬ 
tion is made between property and privileges, by the Constitution. The 
rule laid down as to the former, is, that 1 all property shall be taxed 
according to its value/ and no one species of property from which a 
tax may be collected shall be taxed higher than any other species of 
property of equal value/ But the rule, as to privileges, is the discre¬ 
tion of the legislature; the latter are to be taxed in such manner as 
may, from time to time, be directed by the legislature. It will be 
observed, too, that the twenty-ninth section, which authorizes a delega¬ 
tion of the power of taxation to incorporated towns, for corporation 
purposes, is very broad in its terms; it does not mention ‘privileges' 
at all; property alone is embraced, and in reference to that, the only 
restriction is, that the principle established in regard to State taxatiou 
shall be observed by corporations. But in respect to privileges, the 
corporation is left to the exercise of a sound discretion in imposing a 
tax thereon, unless restricted by the legislature, in the charter of incor¬ 
poration, or by some general law of the State.” 39, 365. Adams v. 
Mayor etc. of Somerville. 1859. 

Power to Impose this Tax on Retail Liquor Dealers.— GREEN, J.: 

“The charter of the corporation of Columbia, October, 1817, ch. 143, 
sec. 2, expressly confers the power on the corporation to lay and collect 
taxes. The Constitution, art. 2, sec. 28, empowers the legislature to tax 
privileges in such manner as they from time to time may direct. By 
the Act of 1835, ch. 13, sec. 4, retailing spirituous liquors is made a 
‘ privilege/ and taxed as such. 

“There is no question, then, but that the corporation had the right 
to tax tippling houses to some extent. The law to lay this tax, if it 
exist at all, must be drawn from the direct taxing power conferred in 
the charter. It can not be derived from the power to regulate aud 
restrain tippling houses. That must be done by such ordinances as will 
prevent these houses from becoming disorderly, and imposing penalties 
for the infraction of such laws. The taxing power could only have been 
exercised in reference to this trade as a lawful occupation, affording to 
the persons who follow it a profit which would make it proper they 
should pay a tax for the privilege. By the twenty-eighth section of the 
second article of the Constitution it is provided that all property shall 
be taxed according to its value, and that no one species of property 
from which a tax may be collected shall be taxed higher than any other 
species of property of equal value; but the legislature may tax privi- 


TAXATION BY MUNICIPAL CORPORATIONS. 


371 


leges as they may from time to time direct. The twenty-ninth section 
of the same article provides that counties and corporations ‘shall tax 
property according to its value, upon the principles established in regard 
to State taxation.’ Nothing is said in this section in regard to privi¬ 
leges, and, therefore, they are left, in regard to them, to the exercise of 
a sound discretion. It would be safe to conform the exercise of this 
power to the principles established in regard to State taxation, and to 
tax privileges in the proportion they pay to the State. But a want of 
exact conformity in this respect would not make the tax void, for the 
legislature may tax privileges in what proportion they choose, and so 
may corporations, provided the inequality be not such as to make it 
oppressive on a particular class of the community. A by-law for 
oppression is void. Angel & Ames, 184.” 20, 240. Mayor etc. of 

Columbia v. Beazley. 1839. 

Privileges, How Created—Livery Stable. — Question: Did plaintiff 
have the right to tax the keeping of a livery stable as a privilege! 
Caruthers, J.: “It is a power of the legislature alone to create privi¬ 
leges and forbid their exercise without license. They have made the 
keeping of a tippling house, a race track, etc., privileges, but not livery 
stables. Until this is done by the law-making power, that occupation 
can not be taxed, as such, auy more than the keeping of a blacksmith 
shop, or a lawyer’s or doctor’s office. This power of creating privileges 
has not (even if it could be) been delegated to this municipal corpora¬ 
tion.” 40,414. Mayor etc. of Columbia v. Guest. 1859. 

Power to Tax Mercantile Privileges—Partial Legislation.— ANDREWS, 

J.: “There can be no doubt as to the right of the municipal authorities 
of the city of Nashville to impose a reasonable tax upon the mercantile 
privilege within the corporate limits. And such tax need not be imposed 
in the precise mode adopted by the legislature in regard to State taxa¬ 
tion. But the authority conferred upon the municipal authorities of 
Nashville can not enable them to create a privilege for the purpose of 
taxing it, or to discriminate between persons exercising the same privi¬ 
lege by imposing a tax upon one class at a higher rate in a different 
mode, or upon other principles than are applied to the exercise of the 
same privilege by others. Their power to tax privileges goes no further 
than the delegation in their charter; and auy attempt to impose other 
or heavier burdens upon a portion of those exercising the same privi¬ 
lege than are imposed upon the others would be void, as being beyond 
their granted powers, and as an exercise of partial legislation.” 45, 
558. Mayor etc. of Nashville v. Althrop. 1868. 

Imposing Privilege Tax on National Banks. — NICHOLSON, J.: “We 
think it manifest that it was not the intention of the legislature to sub¬ 
ject the uational banks to taxation for the exercise of the privilege. To 


372 


TENNESSEE CONSTITUTIONAL LAW. 


constitute a privilege the occupation or business transactions must be 
such that the legislature could forbid it to be pursued or done, and 
which could only be pursued or done under license issued by the author¬ 
ity of the State. The national banks are authorized to pursue their 
bauking business by virtue of acts of congress. As the legislature has 
no power to prohibit the exercise of the privilege so conferred by con¬ 
gress, it would seem clear that it was not in their contemplation to 
include national banks among the privileges to be taxed.” 55, 815. 
National Bank of Chattanooga v. Mayor etc. of Chattanooga. 1875. 

Regulation of Interstate Commerce—Privilege Tax on Drummers — 
Act of 1881, Ch. 96, Sec. 16.— Bradley, J., held: “The power of con- 
gress to regulate interstate commerce is exclusive when its subjects are 
national in character, or admit only of one uniform system or plan of 
regulation. Where its power is exclusive, the failure of congress to 
make express regulations indicates its will that the subject shall be left 
free from any restriction or impositions. A State can not levy a tax or 
impose any other restriction upon the citizens or inhabitants of other 
States for selling or seeking to sell their goods in such State before they 
are introduced therein. The negotiation of sales of goods which are in 
another State, for the purpose of introducing them into the State in 
which the negotiation is made, is interstate commerce. Such commerce 
is not subject to State taxation, even though there be no discrimination 
between it and domestic commerce.” 1 Judges Waite, Field and Gray 
dissented. 120 U. S. 489-502. Robinson v. Taxing District of Shelby 
County. 1887. 


Municipal Regulations. 

Corporation Must Determine What Restrictions Upon Trade are for 
the Public Good.— An ordinance made it an unlawful offense, punishable 
by fine, to keep open a saloon after a certain hour. Caruthers, J.: “It 
is a correct principle that a corporation can pass no by-laws inconsistent 
with the Constitution and laws of the State. Ang. & Ames on Corp., 
182-188. A by-law must also be reasonable, and not oppressive. Same, 
and 2 Kent’s Com., 296; Mayor and Aldermen of Columbia v. Beazley. 
Subject to the restrictions and limitations, the power to make by-laws 
abides in all municipal corporations, and may be enforced by penalties. 
In the ordinance under consideration we see nothing oppressive or vio¬ 
lative of the Constitution or laws of the State. The license privilege is 
not prohibited, but regulated in its exercise by a reasonable and proper 
restriction. It must be left to the corporate authorities to determine 
what restrictions upon this trade are required for the general good, and 
unless they are unreasonable and oppressive, they are valid and will be 


1 Reversing the judgment of the Tennessee Supreme Court, reported in 81, Tenn., 303. 



TAXATION RY MUNICIPAL CORPORATIONS. 


373 

maintained. No man can be permitted to exercise or use any of his 
rights to the unnecessary injury of others, and much less whole com¬ 
munities.” 40, 247. Smith et al. v. Mayor etc. of Knoxville. 1859. 

Sabbath Day—State May Compel Observance of—May Empower Mu¬ 
nicipal Corporations to do the Same. — COOKE, Sp. J.: “The question as to 
the power of the State to compel by penal enactments the observance 
of the Sabbath day, so far as cessation from secular pursuits is con¬ 
cerned, and to punish its opeu violation, as well as the power of the 
legislature to confer the same authority upon municipal corporations, 
has not been seriously questioned by the very able and learned counsel 
who have argued the cases for the defense, and is too well settled in our 
jurisprudence to admit of question or to require discussiou.” 80, 502. 
Mayor etc. of Nashville v. Linck. 1883. 

Sidewalk Laws. 

Assessment for Cost of Constructing Sidewalk Not a Tax—Not Unequal 
—Not Oppressive—Public Benefit.— The municipality of Franklin passed 
an ordinance, in pursuance of express legislative authority conferred by 
charter, requiring each owner of a lot on a given street to construct a 
foot pavement in front of his lot. The plaintiff in error, a lot owner, 
failing to make the pavement as required by the ordinance, after having 
been notified to do so, the high constable of the town proceeded to con¬ 
struct-the pavement as required, at a cost of $75, which was paid by the 
corporation, and to recover which this action is brought. A verdict and 
judgment were rendered against Maberry in the Circuit court, and he 
appealed to this court. 

Green, J.: “It is now contended that this ordinance is in the nature 
of a tax levied on the owners of lots, and, as such, that it is unconsti¬ 
tutional, because it is unequal. We do not think that this law levies a 
tax. A tax is a sum which is required to be paid by the citizens annually 
for revenue for public purposes. But this ordinance levies no sum of 
money to be paid by the citizens. It requires a duty to be performed 
for the well-being and comfort of the citizens of the town. It is in the 
nature of a nuisance to be removed. And if an ordinance were to 
require that each owner of a lot in town should remove nuisances from 
his lot, and on failure to do so the town constable should remove the 
nuisance, and the party should pay the expense of the work, it would 
hardly be suggested that the expense so incurred would be a tax. And 
yet such a case is in principle analogous to the one before us. The ordi¬ 
nance in question is, therefore, not unconstitutional on the ground of 
being an unequal tax. 

“ But it is said that this ordinance is unequal in its operation, oppres¬ 
sive in its requirements, and therefore void. It appears from the evi¬ 
dence that several adjacent lots were worth, with improvements, from 


374 


TENNESSEE CONSTITUTIONAL LAW. 


$2,500 to $1,000, and that the lot in question was unimproved, and 
worth only $400. It was also proved that the pavement enhanced the 
value of the lot, but that the increased value was not equal to the cost 
of the pavement. Upon these facts we do not think this ordinance 
oppressive, and lor that reason void. The duty required to be per¬ 
formed, although of some advantage to all other inhabitants of the 
town, is also of peculiar benefit to the party who is the owner of the 
lot. The evidence is that the street near the lot in question was uneven, 
and in wet weather very muddy and disagreeable to pass. A sidewalk 
well paved would therefore add greatly to the comfort of all who might 
pass that way, and the owners of the lots would share largely in the 
advantages it would afford. The ordinance is general in its character, 
operating on all persons owning property on the particular street desig¬ 
nated. The plaintiff in error derived a benefit from tha operation of 
the law, not only in the comfort his own pavement afforded, but from 
the pavements made by other persons who owned lots in the town. 
The fact that these pavements exist must add to the value of property 
in that town, and in the general appreciation of property the plaintiff 
in error will derive a proportional advantage. B ut it is said that this 
lot is unimproved, and is of much less value than the improved lots, the 
pavement in front of which cost more than the one in question, and that 
for this inequality the ordinance is void. It may be replied that lots in 
a town are valuable only because they are convenient sites for the erec¬ 
tion of buildings or other improvements; and should the plaintiff in 
error construct improvements as valuable as those on the lots of his 
neighbors, the inequality of this burden would cease. Besides, perfect 
equality of burdens can not be attained in public regulations. If the 
corporation law had required that every man in the town should labor a 
given number of days in repairing the streets, no one would imagine 
such law void for inequality and oppression; and yet in that case the 
inequality of burden would be the same in principle as that here com¬ 
plained of, for these pavements might have been constructed by the 
labor of the citizens so exacted. Does it follow that, because one man’s 
lot may be less improved, and therefore less valuable than that of 
another, he is less benefited by the construction of streets and side¬ 
walks? Not at all. On the contrary, the reverse may be the fact. He 
whose lot is least valuable may, from the peculiar circumstances of his 
family, derive much more benefit from such means of comfortable pas¬ 
sage through the town than his more wealthy neighbors. Mere inequality 
in the value of lots does not, therefore, establish the proposition that, in 
making the pavements of equal extent, the burdens were unequal. We 
think, then, there is no such inequality in the case before us as to con¬ 
stitute such oppression as must exist before a corporation law is void 
for that cause.” 25, 373. Mayor etc. of Franklin v. Maberry. 1845. 


TAXATION BY MUNICIPAL CORPORATIONS. 


375 


Ordinances Requiring Owners of Lots to Lay Sidewalks Not in the 
Exercise of Taxing Power—Not Taking Private Property for Public Use 
—Principles Upon Which They are Upheld. —Washington was served 
with notice to lay a sidewalk in front of his lot. He failed to do it. The 
city then laid the pavement, sued Washington, got judgment, and he 
appealed. Green, J.: “It is now insisted that the act of the legislature 
giving the corporation authority to make the by-law under which this 
proceeding is had is unconstitutional, and of no force and validity. This 
question has heretofore been before the court in the case of Maberry 
v. The Corporation of the Town of Franklin, and it was held in that case 
to be within the legislative competency to enact such law. We have 
heard nothing advanced to shake our conlidence in the correctness of the 
judgment in that case. To require the owners of town lots to construct 
pavements along their sidewalks is not the exercise of the taxing power, 
nor is it the taking of private property for public use. Upon these two 
subjects there are express provisions in the Constitution restraining the 
exercise of legislative discretion. But the provision in question requires 
the owners of property in the city to contribute their labor towards the 
construction of pavements for the common good of the community 
where their property is situated, whereby the general interest is pro¬ 
moted, and the property thus owned is greatly enhanced in value. It is 
the exercise of precisely the same description of power that is employed 
in requiring the inhabitants of a county to labor in the opening and 
keeping in repair the public roads. This is not denied; but the argu¬ 
ment questions the exercise by the legislature of such power, and 
demands a principle to be stated upon which it can rest for support. 

“It would be sufficient to reply that the Constitution contains no 
prohibition of the exercise of such power, and that, as the legislature is 
as omnipotent as the British Parliament, except where there is a nega¬ 
tive in the Constitution on its power, express or implied, it follows that 
the power may be exercised, unless its exercise is so unjust and oppres¬ 
sive as for that reason to be of no force. And counsel puts the argu¬ 
ment to negative the existence of this power on the ground that it is 
unequal, and therefore unjust and oppressive. It is certainly true that 
perfect equality is not attained by the operation of this law; but it may 
be said with equal truth that such equality of public burdens can not 
be attained by any device that the wit of man has ever yet suggested. 

“If a fund be raised by taxation for constructing roads in the county, 
or streets and sidewalks in the town, it is certain that equality of bur¬ 
dens in proportion to the benefits enjoyed will not be attained. Take 
our mode of taxation for example. A merchant may have a large 
stock of goods, and may own no lots in town. You raise a tax to 
improve the streets and sidewalks. The merchants will pay the larger 
share of the taxes, but the owners of the lots will reap the advantage 


376 


TENNESSEE CONSTITUTIONAL LAW. 


almost exclusively in the appreciation of the value of their estates. 
Here would be a gross inequality. It would be taking the money out 
of the pockets of one class of citizens with which to improve the prop¬ 
erty of another class. It is true there will not be exact equality of bur¬ 
dens among the owuers of lots if each is compelled to construct a side 
pavement in front of his lot. And this condition constituted a strong- 
ground in Maberry’s case for insisting that the law was oppressive. 
But in the case before us no such inequality exists against the defend¬ 
ant. His lot is of great value, and if the owners of real estate in the 
city were taxed to make these improvements the defendant would 
doubtless be compelled to pay, in such taxes, a greater sum than the 
pavement of his sidewalks have cost. Perhaps it might be otherwise if 
merchants in the city were taxed in the proportion they pay into the 
State treasury. But we have seen how unequal and oppressive on them 
such a tax would be. This law is general; it operates alike on all, and 
is not, in our opinion, so unequal as for that reason to be of no force. 

“The principle upon which this power of legislation is exercised is 
that plain and universal one—indispensable in the administration of 
government—that the public have a right to the contributions of the 
money and personal service of all its citizens whenever the public inter¬ 
ests and exigencies may demand it, in consideration of the protection it 
affords to life, liberty, reputation and property. Those benefits con¬ 
ferred by government entitles it, as a matter of principle as well as from 
the necessity of the case, to any service its exigencies may demand, and 
to the employment of the property of the citizens in any way that may 
be necessary for the public good and which is not forbidden in the Con¬ 
stitution. 

“ It is upon this principle a militia man is compelled to serve in the 
army or to patrol in his neighborhood. But these services are not 
resisted on the ground that every other man does not perform equal 
service. Nor upon the ground that the party has no friends or property 
to protect, while others, who have not been called on, and may not be 
needed, have thousands of property and numerous families. Indeed, 
we can scarcely find, in the exercise of the sovereign authority, any 
subject, in relation to which public burdens are imposed, in which there 
is very much nearer approach to equality than exists in the operation of 
the law in question. We therefore think it is constitutional, and con¬ 
ferred on the corporation power to make the by-law in question.” 1 
31 , 180. Washington y. Mayor etc. of Nashville. 1851. 

1 In the case of Taylor, McBean & Co. v. Chandler et al., 56 , 377, Judge Freeman says of 
the two opinions above quoted: “ If the question was an original question, we should not be 
disposed to agree with the proposition thus laid down. We think it was straining the principle 
very far, to hold, that an improvement, such as a sidewalk, can be included under the idea of ‘a 
nuisance to be removed.' It is certainly more in the nature of an erection of a needed improvement for 
the comfort and convenience of the citizens of the town, than the removal of that which ts noxious and 
hurtful to the citizens of the town. We do not feel inclined, however, to disturb that decision, 
when confined to the precise state of facts to which it was applied in that case.Judge 



TAXATION BY MUNICIPAL CORPORATIONS. 


377 


Notice to Lot Owner—By Ordinance or by Some Officer or Employee 
—Delegation of this Power—When Legal and when Not—Construction 
of Charter.— McKinnet, J., after reaffirming the principles announced 
in the two cases above, said: “The remaining question is whether, in 
the present case, the power conferred upon the corporation has been 
•exercised iu conformity with the law of its creation. The power to 
charge the owner with the cost of a pavement made by the corporation 
is restricted not only by the terms of the act of incorporation, but like¬ 
wise by the very purpose for which it was bestowed. The provision of 
the statute is, ‘that if the owner or owners of lots shall fail to comply 
with the provisions of such by-laws within such time as may he pre¬ 
scribed thereby, the corporation may contract,’ etc. By this provision 
no notice is contemplated other than that to be conveyed by the pro¬ 
mulgation of a general law of the corporation, applicable to and oper¬ 
ating upon all owners of lots within the limits of the corporation, 
requiring foot pavements to be made, and prescribing the time within 
which they shall be made. Such a law, thus promulgated, is notice, of 
itself, to all lot owners within the corporation, and, if reasonable in its 
terms, must be complied with by all at their peril. The by-law under 
consideration, requiring pavements to be made by the owners, does not 
prescribe any time within which such pavements shall be constructed, 
but, as a substitute for this requirement of the charter, enacts that, if 
the owner or owners of lots shall fail to comply with the provisions of 
the by-law, after thirty days’ notice , the chairman of the street commit¬ 
tee may contract, etc. As to the manner of giving such notice, or by 
whom it shall be given, the by-law is perfectly silent; but the practical 
construction and operation of the law is, as it seems, that the chairman 
of the street committee, without any order or resolution of the board 
of mayor and aldermen, either general or special, gives the notice to 
particular individuals in default. In other words, the notice, instead of 
emanating from the board of mayor and aldermen, as a general require¬ 
ment, approved by the judgment and discretion of the persons in whom, 
by the charter, the power and trust are confided, it proceeds, as it 
would seem, from an irresponsible individual, unknown to the charter, 
and upon whom even the by-law confers no such authority. 

“ This is an exercise of the power conferred upon the corporation 
wholly unwarranted by the act of incorporation. We do not say that 
it was not competent for the corporation, instead of prescribing a time 
in the by-law for making pavements, to provide that they should be 
made upon reasonable notice; but then some further specific action of 

•Green saw clearly that the imposition must be put outside of the truing power, or else it could 
not be maintained. While we do not disturb these decisions, we hold, that they are to be limited 
strictly to the precise facts on which they are made, and that to carry them so far beyond these facts 
as to cover and include an exaction or burden of the magnitude involved in the case now under 
discussion would be not only to do violence to their letter, but we have no doubt would be to 
carry them much farther than the learned court ever conceived they would be attempted to be 
carried or applied." 



378 


TENNESSEE CONSTITUTIONAL LAW. 


the corporation would become indispensable, directing that such notice 
should be given, and in what manner. If the corporation ever possessed 
the power to delegate to an individual member or members the author¬ 
ity to determine what particular owners of lots should be required to 
construct pavements, and to give notice accordingly, it might suffice to 
say that this has not been done by the law under consideration. But 
we do not admit that the corporation possesses any such power. It 
can admit, no doubt, that an ordinance or by-law of the corporation,, 
requiring particular individuals, by name, to construct pavements in 
front of their lots, passing by others who had omitted to do so, would 
be a nullity. Such an enactment would be partial, oppressive, and 
wholly unauthorized. And if this could not be done directly, it can not 
be doue indirectly, in the manner attempted in the case before us. The 
power conferred upon the corporation is in trust for the benefit of all 
the citizens of the town, and must be exercised with discretion; and it 
must be exercised by the persons upon whom, by the act of incorpora¬ 
tion, it is conferred—by themselves or under their express directions, 
as in other cases of personal confidence and trust, when judgment and 
discretion are required or relied on. Ang. & Ames on Corp., 346, 257. 
By-laws must be reasonable, and all such as are unequal, oppressive or 
manifestly unjust are void. Id. 347. And whether a by-law is reasona¬ 
ble or not is a question for the determination of the court. Id. 357. 
It is unquestionably true that, in addition to the incidental powers and 
capacities tacitly conferred by law upon a corporation, there may also 
be implied powers, in order to carry into effect the powers expressly 
granted, or to effect the purpose of its creation; but when the corpora¬ 
tion is endowed, by its charter, with power to make a specific by-law in 
a certain case, and for a certain purpose, its power of legislation is 
restricted to the case and object specified, and all others being excluded 
by implication. Id. 323. Here the power imparted to the corporation, 
and the manner of its exercise, are expressly defined in the statute and 
must be strictly pursued.” 32, 370. White v. Mayor etc. of Nashville. 
1852. 

Charge for Constructing Sidewalk May be Declared Lien on Property 
—Act of March 17, 1875 .—Turney, J.: u Except as to the matter of the 
lien, these several questions are determined against the defendant in the 
cases Mayor and Aldermen v. Maberry, Washington v. Mayor and Aldermeu 
of Nashville. The question of the power of the legislature to authorize the 
making of the walks or pavements, and a charge therefor, being settled, 
the power to declare a lien upon the property for such charge follows, as 
of course the one power is an incident to the other, and naturally attaches 
to it. If the legislature may provide for the creation of a debt, it may 
also provide for its security or payment. If it may charge the owner 
of the property, it may charge the property itself as well. It is argued. 


TAXATION OF HOME MANUFACTURES. 


379 


however, the case of Taylor, McBean & Co. v. Chandler et al., knowD 
as the Memphis Nicholson Pavement Case, overrules the case cited. A 
reference to the last-named opinion will show that the cases cited were 
criticised, and in terms admitted to have been properly decided. 
Besides, there is a wide difference between the cases on their merits. 
The ordinance pursuing the legislative grant requires a duty to be 
performed for the benefit, health, well-being and comfort of the citizens 
of Nashville, including the owner of the property. The pavement adds 
to the convenience and comfort of all who pass that way, the owner of 
the lot sharing largely in the advantage afforded, and devising an addi¬ 
tional advantage in the appreciation of the value of his property, still 
further increased by other walks and pavements made in front of other 
lots in that part of the city. It is for the benefit of all the citizens that 
such grants are made to the city authorities, and it is only so long as 
they are confined to benefits that the law will allow of them. When 
they cease to be exercised for the benefit and comfort of the citizen, 
and to promote the welfare of the community, and become oppressive 
and unreasonable, destroying the value of property to the owner, or as 
is the 9th Heiskel case, appropriating the entire value of the property, 
and in some instances more, then they pass without the spirit and pur¬ 
pose and authority of the Constitution, and are void. The Constitution 
is intended to protect, not to destroy; to prosper, not oppress, the 
citizen. The case before us is one in which the enforcement of the 
statute and ordinance benefits the entire community and each citizen." 
Tenn. Leg. Rep., vol. 2, p. 2(5. Mayor etc. of Nashville v. Berry. 1877. 


TAXATION OF HOME MANUFACTURES. 

Art. 2, Sec. 30. No article manufactured of the produce of 
this State shall be taxed otherwise than to pay inspection fees. 1 
[ Same as Const. 1834, art. 2, see. 30; Const. 1796, art. 1, see. 27. J 

Object of This Provision to Encourage Manufactures — Liability of 
Merchant to Pay Privilege Tax for Selling Articles Manufactured in This 
State—Art. 2, Sec. 28. — Caruthers, J.: “This agreed case, between 
the clerk of the County court of Henry county, on the part of the State, 
and the defendants, who are merchants in that county, raises the ques¬ 
tion of the liability of a merchant to pay a tax for selling things manu¬ 
factured in this State. The statute 2 is, that 4 salt, sugar, coffee, spun 
cotton, garden seeds, iron, and articles manufactured in this State, may 
be sold without paying a tax; but these articles are not exempt in the 
hands of any person who sets himself up as a merchant or grocer/ 
In this exercise of this power the legislature at one time taxed 

1 Set* Kelley r. Dwyer, art. 2, see. 28, p. 326; also 32, 355. a Code 1858, 545. 



380 


TENNESSEE CONSTITUTIONAL LAW. 


the merchant a specific sum for the privilege of selling merchandise, 
without regard to the extent of his business; but afterwards the more 
just and equitable mode was adopted, to graduate the amount of the 
tax by the quantity of goods sold. And the question made in this case 
is whether, in this estimate of sales made by them, iron, castings, spun 
cotton, and other things manufactured in this State must be included, 
and in that way enhance the amount of the tax to be paid by them. 
This involves the construction of the section of the Constitution above 
cited. The power to tax merchants in such manner as they may think 
proper is expressly given in section 28, and they have ‘ directed’ that 
the ‘ manner’ shall be to settle the amount to be paid by the extent of 
their business, or the quantity of goods, wares, and merchandise sold 
in each year, including things made or produced in this State. Is this 
prohibited by section 30? We think not. This is not a tax upon the 
article, but the occupation of the merchant. There would have been 
question if the old mode of taxing the occupation of the merchant a 
gross sum had been continued. But what difference can it make? The 
change is only as to the ‘manner’ of settling the amount to be paid for 
the privilege. It is not the article which is taxed, but the occupation 
or privilege. 

“The legislature may tax a man’s land, slaves, plate, jewelry, stocks, 
and almost every other kind of property, but not his flour, tobacco, cot¬ 
ton, iron, etc., ‘otherwise than to pay inspection fees,’ when there are 
laws requiring or allowing inspection of such products, as was once, if 
not now, the case, in this State, as to tobacco, flour, and other articles 
to be exported. This exemption was intended to encourage domestic 
manufactures and stimulate production. It is a wise prohibition. The 
legislature, in this case, have not attempted to violate or evade it. They 
have not ouly refrained from taxing such articles, but saved the pro¬ 
ducer or manufacturer from any tax for the privilege of selling them. 
But when the reason of that protection fails, and they become articles 
of merchandise and profit in the hands of a merchant by occupation, 
they direct that reference shall be had to them as well as foreign articles 
in estimating the amount to be paid for exercising the occupation or 
privilege of a merchant. There would be a great absurdity in any other 
construction. If a merchant got his iron or cotton yarns on one side of 
the State line, they would be taken into the account, but if in sight, on 
his own side, they would not be, according to the doctrine contended 
for. But it is enough to say that we think the legislature were not pro¬ 
hibited by the Constitution from providing that, in ascertaining the 
amount of tax to be paid by ‘ merchants’ for the exercise of their privi¬ 
lege, the articles in question should be included; that not being a tax 
upon the article in the sense of the Constitution (sec. 30), but upon the 
occupation, under sec. 28.” 39, 462. The State v. Crawford McNeil & 
Co. 1859. 


TAXATION OK HOME MANUFACTURES. 


381 


Privilege Tax—Residents and Non-Residents—Our Statutes do Not 
Attempt to Regulate Interstate Commerce—Art. 2, Sec. 28—U. S. Con¬ 
stitution. —“By the Act of 1878, ch. 79, sec. 4, all peddlers of sewing 
machines or selling by sample were taxed. By an act passed March 25, 
1875, ‘articles manufactured of the produce of the State are exempt 
from taxation/ The plaintiff in error manufactures its machines at 
Bridgeport, Conn., and have their principal office in Tennessee, at Nash¬ 
ville. It paid its tax for 1876 for peddling in Sumner county under pro¬ 
test, etc., and brings this action to recover back the amount so paid.” It 
was argued that art. 2, secs. 28 and 30, of the Constitution of this State, 
were repugnant to secs. 8 and 10 of the Constitution of the United States, 
regulating commerce between the States. 

Turney, J.: “Our statute is comprehensive, and applies to the resi¬ 
dent as well as the non-resident—to home manufacturers as well as to 
the importer of foreign goods or goods manufactured out of and not of 
the growth or produce of the State. It is not an attempt to regulate 
commerce between the State of Tennessee and a sister State, nor is it 
an attempt to lay imposts or duties on imports or exports; but broadly 
levies a tax upon all peddlers of sewing machines without regard to 
place of growth, or produce of material, or of manufacture. Again, 
while our Constitution ordains that no article manufactured of the pro¬ 
duce of the State shall be taxed otherwise than to pay inspection fees, 
it also ordains, as we have already noticed, that the legislature shall 
have power to tax merchants, peddlers, and privileges, etc. The two 
clauses must be construed pari passu , and effect given to each. Con¬ 
struing them together it clearly appears the convention took and 
expressed a distinction between a tax upon the article in specie and a 
tax upon the privilege of peddling the article, and conferred upon the 
legislature the power of enabling the enforcement of such distinction.” 
68, 519. Howe Machine Co. v. Cage , Clerk. 1876. 

Wine Dealers—Privilege Tax—Who Liable For.—LURTON, J., held : 
“ The Act of 1885, ch. 5 (extra session), imposing a privilege tax on all 
liquor dealers, wholesale and retail, ‘ except manufacturers who sell to 
be sold again renders one liable for the tax therein laid who sells, to 
consumers, wine manufactured out of grapes produced in this State by 
the manufacturer; and this act is constitutional.” In delivering the 
opinion, he said that this and section 28 “ must be construed together. 
Section 30, it will be observed, only prohibits taxation upon the article 
manufactured of the produce of this State. A tangible and substantial 
benefit is secured to such manufacturer in his exemption from any 
direct tax upon such articles as property while in his hands. Section 
30 does not inhibit the laying of a privilege tax upon the occupation of 
selling such articles. The power to tax privileges in such manner as 
the legislature may direct will undoubtedly authorize the legislature to 


382 


TENNESSEE CONSTITUTIONAL LAW. 


lay upon all who sell liquor a privilege tax—a tax upon the occupation 
and not upon the article. This has been the uniform construction of 
these sections since the Constitution of 1834.” 86, 135. Kurth v. The 
State. 1887. 

Art. 2, Sec. 31. The credit of this State shall not be here¬ 
after loaned or given to or in aid of any person, association, 
company, corporation, or municipality; nor shall the State 
become the owner in whole or in part of any bank, or a stock¬ 
holder with others in any association, company, corporation, or 
municipality. 

Art. 2, Sec. 32. No convention or general assembly of this 
State shall act upon any amendment of the Constitution of the 
United States proposed by congress to the several States, unless 
such convention or general assembly shall have been elected 
after such amendment is submitted. 

Art. 2, Sec. 33. No bonds of the State shall be issued to 
any railroad company which at the time of its application for 
the same shall be in default in paying the interest upon the 
State bonds previously loaned to it, or that shall hereafter and 
before such application, sell or absolutely dispose of any State 
bonds loaned to it, for less than par. 




POWER TO CALI, OUT THE MILITIA. 


383 


ARTICLE III. 


THE EXECUTIVE DEPARTMENT. 

Article 3, Section 1. The supreme executive power of 
this State shall be vested in a governor. [Same as Const. 1834, art. 3. 
sec. 1; Const. 1796. art. 2,>ec. 1.] 

Art. 3, Sec. 2. The governor shall be chosen by the elec¬ 
tors of the members of the general assembly, at the time and 
places where they shall respectively vote for the members 
thereof. The returns of every election for governor shall be 
sealed up and transmitted to the seat of government by the 
returning officers, directed to the speaker of the senate, who 
shall open and publish them in the presence of a majority of 
the members of each house of the general assembly. The per¬ 
son having the highest number of votes shall be governor; but 
if two or more shall be equal and highest in votes, one of them 
shall be chosen governor by joint vote of both houses of the 
general assembly. Contested elections for governor shall be 
determined by both houses of the general assembly, in such 
manner as shall be prescribed by law. [Same as ConRt. 1834, art. 3, 
sec. 2; Const. 1796, art. 2, sec. 2.] 

Art. 3, Sec. 3. He shall be at least thirty years of age, 
shall be a citizen of the United States, and shall have been a 
citizen of this State seven years next before his election. [Same 
as Const. 1834, art. 3, sec. 3.] 

[ Const. 1796, Art. 2, Sec. 3. “ He shall be at least twenty-five years of age, 
and possess a freehold estate of five hundred acres of land, and have been a 
citizen or inhabitant of this State four years next before his election, unless 
he shall have been absent on the public business of the United States or of 
this State."] 


Art. 3, Sec. 4. The governor shall hold his office for two 
years, and until his successor shall be elected and qualified. He 
shall not be eligible more than six years in any term of eight. 
[ Same as Const. 1834, art. 3, sec. 4 : Const. 1796, art. 2, sec. 4.) 


POWER TO CALL OUT THE MILITIA. 

Art. 3, Sec. 5. (He shall be commander-in-chief of the 
army and navy of this State, and of the militia, except when 
they shall be called into the service of the United States); but 
the* militia shall not be called into service except in case of 
rebellion or invasion, and then onlv when the general assembly 
shall declare bylaw that the public safety requires it. [Const. 

1834, art. 3, sec. 5, and Const. 17%. art. 2, sec. 5, contained only the provision 
in parenthesis.] 

To Suppress Riots and Mobs — Members of Independent Militia 
Exempt from Jury Service — Special Laws.— The question was the valid¬ 
ity of the ’Act of 1885 “to organize and incorporate an independent 
militia.” Deaderick, J.: “The act in question does grant the right to 
fifteen per cent of the citizens of a county to organize as a corporation, 
and thereupon exempts them from jury service, while the balance of 
such citizens are denied the right and exemption provided for the 

1 The remaining sections of this act were repealed by the Act of 18S7. Shan. Sup. to M. &, V., 
p. 271. 


384 


TENNESSEE CONSTITUTIONAL LAW. 


favored number. Nor can the excluded number, by any thing they can 
do under that act, receive its immunities and privileges, but under the 
general laws of the land, eighty-live per cent of the citizens are bound 
to perform jury service, from which, under the act in question, the 
fifteen per cent are exempted. . . . We have seen the title to this 

bill relates solely to the organization and incorporation of the militia. 
It is not necessary that the title should express fully what is contained 
in the act. And the generality of the title is no objection if it is not 
made to cover legislation incongruous in itself. 8 Heis., 519; 2 Lea,. 
429; 8 Lea, 596; 12 Lea, 253. 

“ The act in question, while it purports to relate only to the organiza¬ 
tion of the militia, provides personal exemption of the individual mem¬ 
bers from duties incumbent on other citizens by the general law. This 
exemption or personal benefit has no relation or relevancy to the subject 
expressed in the title to the act. It is also insisted that sec. 11 of the 
Act of 1885, which empowers the governor to call out the militia when 
he deems it necessary, to suppress mobs, riots, etc., is in conflict with 
sec. 5 of art. 3 of the Constitution, which provides that the militia shall 
not be called into service except in case of rebellion or invasion, and 
then only when the general assembly shall declare, by law, that the 
public safety requires it. We think that secs. 11 and 13 of the Act of 
1885 are unconstitutional and void.” 83 , 709. Greene et at v. The State . 
1885. 


REPRIEVES AND PARDONS. 

Art. 3, Sec. 6. He shall have power to grant reprieves and 
pardons after conviction, except in cases of impeachment. 1 
[Same as Const. 1834, art. 3, sec. 6 ; Const. 1796, art. 2, sec. 6.] 

State Not Responsible for Abuse of Pardoning Power.— “Where, 
within a few weeks the governor pardoned 350 convicts and the lessees, 
being suddenly deprived of three-fourths of the labor they had hired, 
sought to make the State responsible for damages resulting from this 
viovent abuse of the pardoning power.” Nicholson, J., held: “The 
government does not guarantee the fidelity of its officers; and as the 


1 The opinion in the case of Allen v. The State, 8 , 295, decided in 1827, was in substance as 
follows: 

The defendant, having been convicted, moved the court to postpone execution of the sentence 
until next term that he might have time to apply for a pardon. Motion overruled, appeal taken, 
and bond given for appearance of defendant. White, J.: “ The remaining ground for the success 
of this application to the court is the Constitution. By it ‘the governor shall have power to 
grant reprieves and pardons after conviction, except in cases of impeachment.’ Here the power 
to grant a reprieve or pardon is unquestionably given to the governor. But this power would be 
given in vain, unless an opportunity was given for its exercise by him. The means of exercising 
the power must also then come within the Constitution, and be a constitutional right. The 
means, therefore, must be a right in the convicted citizen to be afforded by this court, in those 
cases where the final judgment, after conviction, is rendered thereupon. 'This right must, of 
necessity, supersede the immediate execution of the judgment, or the carrying the same into 
effect, as far as is reasonably necessary, under the circumstances, for its exercise, or the making 
the application to the governor. It is asked from this court, by the plaintiff in error, as the 
means of enabling him in the present case to exercise his constitutional right to suspend, until 
the next term of this court, the execution of the judgment, and in the meantime to admit him 



REPRIEVES AND PARDONS. 


385 


lessees made the contract with reference to prevailing law, they assumed 
the risk of its proper exercise or abuse.” 56, 100. The State v. Ward 
& Briggs. 1871. 

Pardon—Witness — M. & V., 2800 Et Seq.— McFARLAND, J.: “It is 
clear, under these statutes, that the witness was made incompetent 
upon his conviction,” and further, “that it was the will of the legisla¬ 
ture that he should remain so until in the mode pointed out above. 
The purport of the authority we have referred to is, that this is not 
interfering with the constitutional power of the governor to grant par¬ 
dons ; that the governor may pardon the offense, and this relieves the 
party of the punishment. Still, the legislature may, independent of 
this, upon grounds of policy, decree such persons incompetent wit¬ 
nesses. Although it is in one sense a punishment, it is a question in 
which others are interested.” 66, 15. Evans v. The State. 1872. 

Convicts’ Good Time Laws — Retrospective Laws.— SNODGRASS, J., 
held: “Statutes 1 allowing to convicts certain credits on their terms of 
imprisonment in consideration of good conduct, are unconstitutional as 
to all sentences in force at time of their passage, as unauthorized exer¬ 
cise of pardoning power.” 87, 52. The State ex rel. v. McClellan. 1888. 


Art. 3, Sec. 7. He shall, at stated times, receive a compen¬ 
sation for his services, which shall not be increased or dimin¬ 
ished during the period for which he shall have been elected. 
[ Same as Const. 1834, art. 3, sec. 7 ; Const. 17%, art. 2, sec. 7.] 


Art. 3, Sec. 8. He may require information, in writing, 
from the officers in the executive department upon any subject 
relating to the duties of their respective offices. [Same as Const. 

1834, art. 3, sec. 8; Const. 17%, art. 2, sec. 8.] 

to bail. For his admission to bail, his counsel have cited and relied upon Hawkins, P. C., book 2, 
ch 15 sec. 40, where it is said: ‘Also it seems that the court of king’s bench, or iustices of jail 
delivery may bail a person convicted of manslaughter, or, as some say, of any other felony, for 
which he afterwards gets the king’s pardon’: and the same book, ch. 8, sec. 65. in these words: 
‘Also if a man be convicted of manslaughter before such justices (speaking of justices of jail 
delivery), against plain evidence, it is said they may bail him to the next sessions of jail delivery, 
in order to purchase his pardon in the meantime.’ This court have little doubt but that in cases 
of manslaughter, the execution of the judgment ought to be suspended, for the burning in the 
hand is the most important part solicited as the object of pardon, which, if inflicted, the benefit 
of the privilege would be much impaired. That time should be given him here for making the 
application is more necessary than in England; for there a pardon may be applied for before 
conviction, and is often granted; but here, by the Constitution, the pardou can not be granted 
until after conviction.” 

> See Act (extra session) 1885, ch. 15; Act 1887, ch. 157; Shan. Sup. to M. & V., p. 292. 


25 


386 


TENNESSEE CONSTITUTIONAL LAW. 


EXTRA SESSIONS OF LEGISLATURE. 

Art. 3, Sec. 9. He may, on extraordinary occasions, con¬ 
vene the general assembly by proclamation, in which he shall 
state specifically the purposes for which they are to convene; 
but they shall enter on no legislative business except that for 
which they were specifically called together. 1 

[Const. 1834, Art. 3, Sec. 9. “ (He may, on extraordinary occasions, con¬ 
vene a general assembly by proclamation, and shall state to them, when 
assembled, the purposes for which they shall have been convened); but they 
shall enter on no legislative business except that for which they were specifi¬ 
cally called together.” Const. 1796, art. 2, sec. 10, contained only the clause in 
parenthesis.] 

Object of this Provision—Act Passed at a Called Session of the Legis¬ 
lature Under the Constitution of 1834. — REESE, J.: “ It is said that the 
Act of 1836, ch. 4, sec. 2, so far as it authorizes resurveys and changes of 
location or route in railroads and turnpike roads, is unconstitutional, 
because of . . . the limited powers of the legislature at a called 
session, their commission at such time to legislate, so to speak, depend¬ 
ing upon the scope and extent of the governor’s message to be laid 
before them. . . . This undoubtedly is a very salutary provision, 

tending somewhat to check over-legislation, and to render laws a little 
more stable by furnishing a period of two years, during which time 
they may be in some degree subjected to the test of a brief experiment. 
And cases may sometimes arise, it is to be sincerely hoped but seldom, 
in which it may become the duty of the court to declare a law passed 
under such circumstances beyond the scope of the legislative commis¬ 
sion arising out of this provision of the Constitution. Our present 
inquiry is whether this be one of such cases. The 2 message of Newton 
Cannon, governor of the State at the time in question, calls the atten¬ 
tion of the legislature to . . . the act of congress, entitled ‘An Act 

to regulate the deposits of the public money,’ a copy of which was trans¬ 
mitted to them, and with respect to which the governor remarked that 
it presented another subject demanding legislative action during that 
session, and he adds that the reception and judicious investment of such 
sum or sums of money as may from time to time be appropriated to 
our State under the provisions of said act must be regarded by all as a 
matter of paramount importance, and that he had the ‘fullest confidence 
that they would devote to it the most mature consideration.’ 

“He adds, with regard to the act of congress and the fund arising 
from it to the State of Tennessee, that ‘its happy influence in stimulat¬ 
ing us to increased and vigorous exertions in the prosecution of our 
system of education and internal improvements must be extensively 
beneficial to the whole community.’ At that time, by the pre-existing 
laws, the State was interested to the extent of one-third in all the turn- 


1 See Williams v. Nashville, art. 2, sec. 19, p. 306. 

2 See Senate Journal 1836, p. 4; House Journal 1836, p. 6. 



EXTRA SESSIONS OF LEGISLATURE. 


387 


pike companies, and we can not say that the resurvey or change in the 
location of the routes of such public improvements would not consti¬ 
tute a step, and a very material step, to the judicious investment of the 
fund alluded to. We can not say, in view of the message, that it was 
not competent for the legislature ‘to enter upon the business’ thus sub¬ 
mitted to their consideration, or that the provision in question is so 
remotely connected with that matter or ‘business’ as not properly to 
spring out of the general subject. The governor or executive, with us, 
is in no degree or in any sense, a part of the legislature, and has not, 
even at a called session, the initiation of bills. At such session, when 
he submits a general subject, and the legislature ‘enter upon the busi¬ 
ness’ of legislating upon it, it will be found a difficult and inridious task 
to secure the character and details of their provisions so as to determine 
them of too remote affinity with the message from which they arise. In 
this case it is not necessary.” 22, 460. Mitchell v. Turnpike Co. 1842. 

Subjects Not Included in the Call. — TURNEY, J.: “Under this pro¬ 
vision iu the Constitution, the legislature conveued on the 25th of April, 
1861; remained in session until the 9th of May, when it adjourned 
under a resolution to reassemble on the 18th of June, at which time it 
did convene and continue in session until about the 5th of July. 
Governor Harris, at this extra session, submitted two messages—one of 
the 25th of April, and the other of the 18th of June. Except a recom¬ 
mendation to elect a State librarian in the room of R. J. Meigs, who had 
resigned, both these messages are confined to a discussion of the mili¬ 
tary and political interests of the State, without reference, directly or 
remotely, to municipal enactment, regulation or amendment. It fol¬ 
lows that the legislature, in the passage of the l act referred to, entered 
on legislative business for which they were not especially called 
together; and the statute is a nullity. This is decisive of the case, and 
relieves us of the consideration of the question touching the ‘so-called’ 
Schedule of 1865, to the Constitution of the State.” 49, 577. Davidson 
v. Moorman. 1871. 


Art. 3, Sec. 10. He shall take care that the laws be faith¬ 
fully executed. [Same as Const. 1834, art. 3, sec. 10; Const. 1796, art. 2, sec. 10.] 

Art. 3, Sec. 11. He shall, from time to time, give to the 
general assembly, information of the state of the government, 
and recommend for their consideration such measures as he 
ghall judge expedient. [Same as Const. 1834, art. 3, sec. 11; Const. 1796, 
art. 2, sec. 11.] 

Art. 3, Sec. 12. (In case of the removal of the governor 
from office, or of his death or resignation, the powers and duties 
of the office shall devolve on the speaker of the senate); and 
in case of the death, removal from office, or resignation of the 
speaker of the senate, the powers and duties of the office shall 
devolve on the speaker of the house of representatives. [Same 
as Const. 1834, art. 3, sec. 12. Const. 1796, art. 2, sec. 12, contained only clause 
in parenthesis.] 


‘Acts of 1861, Ch. 20, sec. 2. 



388 


TENNESSEE CONSTITUTIONAL LAW. 

* 


Art. 3, Sec. 13. No member of congress, or person holding 
any office under the United States, or this State, shall execute 
the office of governor. [ Same as Const. 1834, art. 3, sec. 13; Const. 1796, 
art. 2, sec. 13.] 

Art. 3, Sec. 14. When any officer, the right of whose 
appointment is by this Constitution vested in the general 
assembly, shall, during the recess, die, or the office by the expi¬ 
ration of the term, or by other means become vacant, the gov¬ 
ernor shall have power to fill such vacancy by granting a 
temporary commission, which shall expire at the end of the 
next session of the legislature. [ Same as Const. 1834, art. 3, sec. 14; 
Const. 1796, art. 2, sec. 14.] 


Art. 3, Sec. 15. There shall be a seal of this State, which 
shall be kept by the governor and used by him officially, and 
shall be called the Great Seal of the State of Tennessee. [Same 
as Const. 1834, art. 3, sec. 15; Const. 1796, art. 2, sec. 15.] 

Art. 3, Sec. 16. All grants and commissions shall be in the 
name and by the authority of the State of Tennessee, be sealed 
with the State seal, and signed by the governor. 1 

Art. 3, Sec. 17. A secretary of State shall be appointed 
(by joint vote of the general assembly), and commissioned 
during the term of four years. He shall keep a fair register of 
all the official acts and proceedings of the governor, and shall, 
when required, lay the same and all papers, minutes, and vouch¬ 
ers relative thereto, before the general assembly, and shall per¬ 
form such other duties as shall be enjoined by law. [Same as 
Const. 1834, art. 3, sec. 17. Const. 1796, art. 2, sec. 17, did not contain clause in 
parenthesis, hut was otherwise the same.] 

Art. 3, Sec. 18. Every bill which may pass both houses of 
the general assembly, shall, before it becomes a law, be pre¬ 
sented to the governor for his signature. If he approve, he 
shall sign it, and the same shall become a law; but if he refuse 
to sign it, he shall return it, with his objections thereto in 
writing, to the house in which it originated, and said house shall 
cause said objections to be entered at large upon its journal, and 
proceed to reconsider the bill. If, after such reconsideration, a 
majority of all the members elected to that house, shall agree 
to pass the bill notwithstanding the objections of the executive, 
it shall be sent, with said objections, to the other house, by 
which it shall be likewise reconsidered. If approved by a 
majority of the whole number elected to that house, it shall 
become a law. The votes of both houses shall be determined 
by yeas and nays, and the names of all the members voting for 
or against the bill, shall be entered upon the journals of their 
respective houses. If the governor shall fail to return any bill, 
with his objections, within five days (Sunday excepted) after it 
shall have been presented to him, the same shall become a law 
without his signature, unless the general assembly, by its 
adjournment, prevents its return, in which case it shall not 
become a law. Every joint resolution or order, except on ques¬ 
tions of adjournment, shall likewise be presented to the gov¬ 
ernor for his signature, and before it shall take effect shall 
receive his signature, and on being disapproved by him, shall 
in like manner be returned with his objections; and the same, 
before it shall take effect, shall be re-passed by a majority of all 
the members elected to both houses, in the manner and accord¬ 
ing to the rules prescribed in case of a bill. 


1 See Bates v. Taylor, Governor, art. 2, sec. 2, p. 259; also 87, 322, and M. & V., 1094. 



THE ELECTIVE FRANCHISE. 


389 


ARTICLE IV. 

ELECTIONS. 


PACE. 


Citizen— Who is—Right of Suffrage-Nat¬ 
uralization. 389 

Elective Franchise Not an Inalienable 
Right—Amendment of 1865, Sched¬ 
ule Sec. 9. 3,90 

Elective Franchise—Statutory Precautions 

Against Mistake and Fraud. 392 

Act of Voting a Political Right or Privilege 

—Inherent Right of Sovereignty... 392 


PAGE. 


Poll Tax on Alien Inhabitants of the 

State. 39$ 

Educational Qualification of Electors — 
Dortch Law — Commissioners of 

Registration. 394 

Poll Tax Law of 1891 — Legislature Has 
Power to Say What Shall be Satis¬ 
factory Evidence. 396 


The Elective Franchise. 


Article 4 , Section 1 . Every male person of the age of 
twenty-one years, being a citizen of the United States, and a 
resident of this State for twelve months, and of the county 
wherein he may offer his vote for six ninths next preceding 
the day of election, shall be entitled to vote for members of the 
general assembly and other civil officers for the county or dis¬ 
trict in which he resides; and there shall be no qualification 
attached to the right of suffrage except that each voter shall 
give to the judges of election where he offers to vote satisfactory 
evidence that he has paid the poll taxes assessed against him 
for such preceding period as the legislature shall prescribe, and 
at such time as may be prescribed by law, without which his 
vote can not be received. And all male citizens of the State 
shall be subject to the payment of poll taxes and the perform¬ 
ance of military duty within such ages as may be prescribed by 
law. The general assembly shall have power to enact laws 
requiring voters to vote in the election precincts in which they 
may reside, and laws to secure the freedom of elections and the 
purity of the ballot box . 1 

[Const. 1834, Art. 4, Sec. 1. “Every free white man of the age of twenty- 
one years, beiug a citizen of the United States, and a citizen of the county 
wherein he may offer his vote six months next preceding the day of election, 
6 hall be entitled to vote for members of the general assembly and other civil 
officers for the county or district in which he resides ; provided, that no per¬ 
son shall be disqualified from voting in any election on account of color, who 
is now, by the law of this State, a competent witness in a court of justice 
against a white man. All freemen of color shall be exempt from military 
duty in time of peace, and also from paying a free poll tax.”] 

[Const. 1796, Art. 8, Sec. 1. ‘‘Every freeman of the age of twenty-one 
years and upwards possessing a freehold in the county wherein he may vote, 
and being an inhabitant of this State, and every freeman being an inhabi¬ 
tant of any one county in the State six months immediately preceding the 
day of the election, shall be entitled to vote for members of the general 
assembly for the county in which he shall reside.”] 

[The amendment of 1865, schedule section 9, was as follows: “ The Quali¬ 
fications of voters and the limitation of the elective franchise may be deter¬ 
mined by the general assembly which shall first assemble under the amended 
Constitution.” See 69 . 247.] 


What is a Citizen with Reference to the Right of Suffrage—Naturaliza¬ 
tion.— McKinney, J. : “The disqualification of the defendant, to vote in 
said election, upon which the prosecution is founded is, that being an 


‘For exhaustive reviews of all the authorities on contested elections, see the briefs of Messrs. 
John J. Vertrees, William H. Carroll, and J. J. Turner, in the first volume of the record in the 
contest for governor by Peter Turney contestant »>. H. Clay Evans contestee, which I presented to 
the 8tate Library. There are only two other complete sets of the proceedings in this contest— 
Mr. Vertrees has one, and I have the other. The State printed a large number of copies of the 
proceedings, but it did not include the briefs of all the counsel. 










390 


TENNESSEE CONSTITUTIONAL LAW. 


alien born, he was not naturalized six months next preceding the day of 
said election, his naturalization and admission as a citizen of the United 
States having taken place within the period of time. On motion of the 
defendant, the presentment was quashed by his honor, the circuit judge; 
and the case comes to this court by an appeal in error, on behalf of the 
State. . . . The journal of the convention, to which we suppose 

it is admissible to refer for the purpose of ascertaining the sense in 
which particular words or phrases may have been used in the Constitu¬ 
tion, shows that in the draft of the section in question, as reported to 
the body, from the committee of the whole, the words, ‘an inhabitant/ 
were used; and, on motion, these words were struck out, and ‘ citizen * 
inserted in their stead. Now, whatever may be said in respect to the 
want of exact verbal propriety in the use of the word ‘ citizen 1 in this 
connection, we must suppose that the convention meant something by 
it. And, in our judgment, no other conclusion can reasonably be 
deduced than this—that it was intended, by the change of the phrase¬ 
ology, to convey the meaning in the most emphatic form of expression, 
that no one should be entitled to exerbise the privilege of voting who 
had not been a member of the body politic, and likewise a permanent 
resident of the local division or county, for the period of six months, 
immediately preceding the day of election. 

“The conditions of this section of the Constitution can not, in our 
opinion, be fulfilled upon any other construction. And this exposition 
is free from the imputation of any hardship, or invidious discrimination, 
as regards naturalized citizens. It puts them on exactly equal footing 
with natural born citizens, immigrating to this State from other States 
of the Union, and on the same footing, too, with our own citizens, 
removing from one county to another in this State; all of whom are 
disqualified to vote until six months after their removal to the county 
in which they may have fixed their residence. It may be remarked, too, 
that this construction of the Constitution may tend, in some degree, to 
check a very serious practical evil, in the judgment of all right-thinking 
men — the mischievous struggles, in some quarters of the country, on 
the eve of an election, to manufacture votes for the occasion, no matter 
how.” 37, 487. The State v. Cloksey. 1858. 

Elective Franchise Not an Inalienable Right—Amendment of 1865, 
Schedule, Section 9.— SHACKLEFORD, J.: “By this provision of the 
schedule the sovereign people conferred upon the general assembly 
designated the same absolute, unlimited and sovereign power to deter¬ 
mine the qualification of voters, and the right to limit the elective fran¬ 
chise, which the members possessed in their sovereign capacity. Under 
this provision of the schedule the *Acts of June 5, 1865, and May 3, 


1 See Acts 1865, first session, p. 3*2; Acts 1866, second session, p. 42. 



THE ELECTIVE FRANCHISE. 


391 


1866, determining the qualification of voters and limiting the elective 
franchise, was passed. Both these acts impose great restrictions and 
limitations on the right of voting which did not exist under the Consti¬ 
tution of 1834, art. 4. sec. 1. 

“We are, at this advanced term, amidst the varied and complicated 
duties that have been imposed upon us during the session, unable to do 
more, at present, than to announce the result of our decision. The 
elective franchise is not an inalienable right or privilege, but a political 
right, conferred, limited, or withheld, at the pleasure of the people, act¬ 
ing in their sovereign capacity. Each State may define it in its own 
Constitution, or empower its legislature to do so. 

“ The right once granted may be taken away by the exercise of sov¬ 
ereign power, or forfeited for crime, under the laws of the State; and if 
taken away by the sovereign power of the State (as by an alteration in 
its Constitution) no vested right is violated, or bill of attainder passed, 
or act of pains and penalties, in the sense of the Constitution of the 
United States. It follows, if the convention of 1865 could, under the 
ratification of the people, declare the qualification of voters and limit 
the elective franchise, it could delegate the power to the legislature. It 
might have left the elective franchise open to the action of all future 
legislation, but it chose to limit it to the general assembly which should 
first assemble under the Constitution, and is, therefore, binding on the 
people of the State. 

“The relator was pardoned by the President of the United States, 
the effect of which was to restore him to the rights and privileges of a 
citizen of the United States; but it did not have the effect without the 
assent of the State where the sovereign power had excluded him from 
political rights, to restore him to the exercise of those rights. Women 
and minors are citizens; yet, by the Constitution, they are prohibited 
from the exercise of political rights. 4 Dev. 20. No one has ever 
doubted the proposition that, according to the institutions of this coun¬ 
try, the sovereignty of a State exists with the people of the State, and 
that they may change, alter, abolish, or reform their government at 
pleasure. Luther v. Borden, 7 Howard, 1. This being so, it follows that 
they had a right to determine who should exercise the right of suffrage. 

“We have examined the late cases decided by the Supreme court of 
the United States, in which the validity of a section of the Constitution 
of Missouri came under review before that court, requiring every attor¬ 
ney, minister of the gospel, schoolmaster, trustees of charitable insti¬ 
tutions, etc., to take an oath restrictive in its character before he could 
exercise the privileges of his calling. The court held, as well as we can 
understand from the newspaper report of the case, that where a citizen 
has an office, employment, or calling, a State can not, directly or indi¬ 
rectly, declare a forfeiture of the office or calling pursued by the citizen 


392 


TENNESSEE CONSTITUTIONAL LAW. 


as a means of living by the imposition of an oath which the party can 
not take. A citizen has the right to labor with his hands or intellect¬ 
ually. These are civil rights, and inalienable, and of which he can not 
be deprived by the people of the State. But a political right stands 
upon a very different principle; it is a political privilege or grant, that 
may be extended or recalled at the will of the sovereign power. It 
follows, therefore, though the relator was pardoned by the president of 
the United States, and he was restored to his privileges as such, and 
though he had the right to vote, under the Constitution of 1834, the 
legislature having, under the powers delegated to them, changed art. 4, 
sec. 1, of the Constitution, he could uot claim the right to register as a 
voter unless he brought himself within the provisions of the Act of May 
3, 1866. We think the act is binding and valid, aud the law of the State. 
The relator not having complied with the provisions of the law, is not 
entitled to relief.” 46, 575. Ridley v . Sherbrook. 1866. 

Elective Franchise—Statutory Precautions Against Mistake and Fraud 
—Will of the People.— By the Court: “In determining what circum¬ 
stances of official omission or misconduct will avoid an election, the 
object to be attained by an election must be kept in view, to wit: the 
ascertaining of the will of the community upon a particular question. 
Whatever statutory provisions are essential to the attainment of this end, 
are obviously indispensable; and whatever precautions prescribed by 
statute against mistake or fraud, are of such a nature that their omis¬ 
sion in the particular instance has resulted in a fraud upon the electors, 
or has rendered the result of the election incurably uncertain, or the 
omission of which, in the future, if permitted, must necessarily prove 
avenues of fraud, tend to prevent a fair exercise of the franchise, or to 
render elections insecure and uncertain, must be held to be matter of sub¬ 
stance, and essential to the validity of the proceeding. But a mere volun¬ 
tary omission to vote, on the part of those entitled, where a full aud fair 
opportunity has been offered, will not alone avoid the election. Those 
who did exercise their electoral rights can not be deprived of the fair 
results of the election by the mere failure of others to vote. The ques¬ 
tion is not whether all the legal voters in the district actually expressed 
their will at the polls, but whether they had the opportunity, which the 
law requires, to do so. . . . The safety of the State depends upon 

the preservation of the integrity of the elective franchise and the purity 
of the elections; and these can only be preserved by requiring the 
officers charged with duties in regard thereto, to comply with all the 
essential requisites of the laws placed to guard the franchise against 
abuse, fraud or violence.” 45, 592. Barry v. Lauck. 1868. 

The Act of Voting a Political Right or Privilege—Act of 1865— 
Inherent Right of Sovereignty. — SHACKLEFORD, J.: “The right to Con¬ 
trol and limit the elective franchise by the sovereigu will of the people 


THE ELECTIVE FRANCHISE. 


39:i 


in the formation of their Constitution, so far as we are informed, has 
never been doubted. The right was exercised in 1834. Persons who 
were inhabitants of the State ‘could not exercise the right unless they 
became citizens of the State and United States. This is one of the 
inherent rights of sovereignty, and has been recognized by the people 
of the different States of the Union in the formation of their Constitu¬ 
tions since the organization of the government, each State limiting or 
■enlarging the right of suffrage, thereby recognizing the principle as a 
political and not a natural right. It follows, therefore, that from long- 
established precedents, the people of the State, acting in their sovereign 
■character through their representatives in convention assembled, have 
exercised the right of determining the qualifications of voters, and limit¬ 
ing the elective franchise. The right of suffrage is a political right or 
privilege, and not a natural or inherent right, and as such is subject to 
the will of the people in changing or altering the fundamental law. 

“No one has ever doubted that the right of sovereignty of a State 
exists with the people of the State, and possessing the sovereign power, 
they have the right to adopt and form such a Constitution as may, in 
their wisdom, conduce to the public good and the protection of the 
whole people; provided , always , its provisions do not conflict with the 
provisions of the Constitution of the United States—the supreme law of 
the land. . . . The right here exercised was one of sovereignty, 

depriving the citizen in the Act of June 1, 1865, for a period of time, 
from exercising the right of franchise, which was a trust or privilege 
extended to him by the right of the sovereign power, and which it had 
the right to recall at any time, without the violation of any vested right. 
. . . The State, in a sovereign capacity, can not deprive the citizen of 

the right to labor, and from enjoyment of the proceeds of his labor, by 
the imposition of an oath. This, the Supreme court says, can not be 
done, as it amounts to a forfeiture of an estate which the party has in 
his calling or possession. There is a clear distinction between the case 
settled by the Supreme court of the United States and the case under 
consideration. The one is an inherent and natural right, and the other 
a political right or privilege—a trust delegated. The first falls directly 
within the prohibitions of the Constitution of the United States; the 
other is a trust, subject to be revoked by the sovereign will.” 46, 268. 
1 The State v. Staten. 1869. 

Poll Tax on Alien Inhabitants of this State—Art. 2, Sec. 28 and this 
Section.— Cooper, J.: “There are wise provisions, iutended to compel 
every male citizen, with certain limited exceptions, to pay a personal 
tax for the protection afforded him, and for the privilege of exercising 
the elective franchise. These provisions do not contain any restriction 

1 See same ease, art. 1, sec. 8, p. 42; art. 2, sec. 2. 


394 


TENNESSEE CONSTITUTIONAL LAW. 


od the power of the legislature over the inhabitants of the State who 
are not citizens. The fact that a person is an alien, owing allegiance to 
a foreign potentate, may lay him open to heavier legislation, but would 
certainly not exempt him from taxation common to all citizens. The 
legislature has unlimited legislative power, except so far as it i& 
restrained by the Constitution of the United States and the Constitution 
of this State. Davis v. The State. 3 Lea, 377. And they who insist 
upon the unconstitutionality of an act, must point out the specific pro¬ 
vision of the Constitution which is violated. The court can only inter¬ 
pose upon a plain violation of some positive provision of the organic 
law.” 74, 68. Kuntz v. Davidson County. 1880. 

The Dortch Law Constitutional — Educational Qualification — Class 
Legislation —Appointment of Commissioners of Registration —Art. 11, 
Sec. 17 — U. S. Constitution, Fourteenth Amendment, Art. 4, Sec. 4.— 
The question here was the validity of the ’Act of 1890 (extra session), 
ch. 24, known as the “ Dortch Law,” regulating elections in counties having 
over certain population. Turney, J.: “ The convention of 1870, in a spirit 
of conservatism appropriate to the times, prepared and presented the 
Constitution which was adopted by the people. That Constitution gives, 
as we have seen, the elective franchise with the qualifications named. It 
is certain that at that time there was much misgiving and apprehension 
as to the future of the State, and all felt the necessity of such constitu¬ 
tional provisions as would, if rightly construed, preserve in its integrity a 
republican form of government for the State. It is evident the framers 
of the Constitution did not intend, by its conference of the right to vote, 
to ignore an educational qualification in all respects. It fixes the age 
at twenty-one, with a citizenship of the United States, and twelve 
months’ residence in the State, and of six months in the county. The 
age was fixed as one of maturity, at which period the law presumes the 
proposed voter to have sufficiently ripened in mental power to deter¬ 
mine for himself the soundness or unsoundness of the measures upon 
which he is called to vote. Citizenship of the United States is a pre¬ 
requisite, as fixing such interest in the welfare of the federal govern¬ 
ment as supposes a study of and acquaintance with its governmental 
policy, and so of residence in the State and county, as well as to become 
acquainted with the character and capacity of the men who might ask 
office. These restrictions are terms of educational probation. A 
foreigner, if in the United States and in any State and county for any 
number of years, however long, before becoming naturalized, must still 
reside in the county six months after naturalization before he is entitled 
to vote. 5 Sneed, 486. 

“A native citizen or resident of any county can not remove to another, 
however short the distance of removal, and be entitled to vote in the 


1 See Shan. Sup. toM.4V.,p. 97. 


THE ELECTIVE FRANCHISE. 


395 


latter until he shall have been a resident citizen thereof for the period 
of six months. All this is to acquaint and identify him with the wants 
and interests of the people with whom he proposes to live. It is, from 
these clearly-defined constitutional requirements, manifest that the 
framers of the Constitution did not contemplate an indiscriminate and 
ignorant exercise of the elective franchise, but guarded against it as far 
as they could then see it. Having done this, they naturally concluded the 
future might develop mischiefs that would not fall within the defined 
guards, and to make sure of protection in such emergencies, they 
granted to the general assembly ‘the power to enact laws to secure the 
freedom of elections and the purity of the ballot box.’ The purpose of 
the law before us is to require the voter to cast his own ballot, to do 
away, as far as possible, with the illegal practice of voting oftener than 
once, existing in some quarters of the State, and to defeat bribery, 
duress and corruption at the polls. 

“The law is plain and simple in its provisions. Every voter, how¬ 
ever illiterate, can always find a friend to himself, or some one candidate, 
who will read and explain the law and the manner of its observance. 
Ballots and cards of instruction are always at hand. The names of 
candidates are printed, and with little effort the unlettered voter can 
soon become as well acquainted with the printed name of his candidate 
as with his face, and with easy readiness place his cross (X) opposite 
that name and fold his ticket as required. The argument of inconven¬ 
ience is as nothing compared to the rights intended to be protected by 
that inconvenience, and the pulling, pushing and bribing of ignorant 
men before and at elections. The inconvenience to a part of the com¬ 
munity must yield to the good of the whole. The law presumes the 
voter expresses the choice of his judgment by his ballot. No man, 
learned or unlearned, can have a choice without being first informed. 
If, then, information is required as to any part of the right and duty of 
voting, why not as well to all? 

“The Constitution surrounded the right of suffrage with some incon¬ 
veniences, and authorized the legislature to attach more. In the 
exercise of its power, the legislature must be reasonable and just, not 
imposing impossible or oppressive conditions, else its legislation will be 
void. That the law applies only to counties of 70,000 and cities of 
9,000 inhabitants, does not impeach its validity. All counties and cities 
that have or may hereafter have the designated population are embraced. 
It applies to all parts of the State, and each city and county may come 
within its provisions. This principle has often been applied by this 
court, holding that similar legislation was not class. 

“The statute in no wise infracts the Fourteenth Amendment to the 
Constitution of the United States. Art. 4, sec. 4, of that instrument 
guarantees to every State in the Union a republican form of government. 


396 


TENNESSEE CONSTITUTIONAL LAW. 


No government can be republican that fails to secure the purity of elec¬ 
tions. By these terms of the United States Constitution the legislature 
of each State has the organic authority for the passage of such laws as 
will secure that purity, and it can not be urged that such laws abridge 
the privileges or immunities of the citizen. In the matter of voting, 
the only privilege one has is to cast his ballot fairly, and not interfere 
with others by fraud, force, or duress. His privileges are personal. 
Whatever may be necessary to carry out the sections of the two Consti¬ 
tutions cited, is within the power of the legislature for adoption. It 
may employ every legislative means, however vigorous, to accomplish 
the ends contemplated by the framers of the Constitutions. The legis¬ 
latures are, as a rule, the judges of the means to be adopted, and their 
necessity. The power to regulate and reform is theirs. They are pre¬ 
sumed to know the condition and wants of the State. 

“The commissioners and registrars named in the act are not county 
officers on contemplation of art. 11, sec. 17, of the Constitution, which 
ordains: ‘No county office, created by the legislature, shall be tilled oth¬ 
erwise than by the people of the County court.’ They merely constitute 
the machinery by which the law is operated. They are more in the 
nature of judges or inspectors of elections.” 90, 408. Cook v. The 
State . 1891. 

Poll Tax Law of 1891 Constitutional—Satisfactory Evidence—Legis¬ 
lature Has Power to Say What Shall Be. — SNODGRASS, J.: “ Defendant was 
indicted in the Circuit court of Wayne county for illegal voting. The 
charge was that in a certain election, held on the 15th of October, 1895, 
in the fourth civil district of Wayne county, to elect a justice of the 
peace, the defendant, being over the age of twenty-one years and hav¬ 
ing had a poll tax assessment against him for the year next preceding the 
election, which he had paid, did unlawfully vote in said election without 
furnishing to the judges thereof satisfactory evidence that he had paid 
said poll tax, to wit: That he did not present to the judges of said elec¬ 
tion his original poll tax receipt, or a duly certified duplicate and copy 
of the same, or the duly authenticated certificate of a constable or 
deputy collector, as required by law, or make affidavit in writing, signed 
by him, that he had paid his poll tax and that his receipt therefor was 
lost or misplaced. The indictment was quashed, on motion of defend¬ 
ant, and the State appealed in error. 

“The correctness or incorrectness of the judgment depends upon 
the question whether chapter 23 of the Acts of the extra session of 
the legislature of 1891 is or is not constitutional. . . . The first 

section of the act provided ‘ that chapter 222 of .the Acts of the 
regular session, approved March 30, 1891, regulating the elective 
franchise (which act was itself an amendment of the Acts of 1890, 
ex. sess., ch. 26, p. 67), in accordance with art. 4, sec. 1, of the 


4 


THE ELECTIVE FRANCHISE. 397 

Constitution of the State, be so amended as to require that satisfac¬ 
tory evidence to be furnished by the voter to the judges of election, 
whether general or special, whether national, State, county, or muni¬ 
cipal, that he has paid the poll tax contemplated by the Constitution 
assessed against him, if any, for the year next preceding said election, 
shall consist of the original poll tax receipt or a duly certified duplicate 
and copy of the same, or the duly authenticated certificate set out in 
section 8 (which provided for a trustee’s certificate and its form), when 
said tax has been paid to a constable, and not to said trustee, properly 
certified by the trustee, or shall make affidavit in writing, and signed by 
the voter, that he has paid his poll tax and that his receipt is lost or 
misplaced, which affidavit shall be filed with the said judges, and by 
them attached and made an exhibit to the returns of said election.’ 
The fifth section of this act provided ‘that any person voting, or any 
judge of any election permitting, knowingly, any person to vote in the 
same without first having complied with the provisions of section 1 of 
this act (the section just quoted) shall be guilty of a misdemeanor, and, 
on conviction thereof, shall be fined not less than fifty dollars and 
imprisoned in the county jail or workhouse ninety days.’ 

“A reference to the indictment clearly shows that it states an offense 
under this act, and, if the act be valid, is clearly good. The objection 
of the defendant is that the act is unconstitutional, and this involves 
the consideration of the constitutional provisions which it is urged on 
the one hand invalidate and on the other authorize this statute. These 
are embodied in art. 4, sec. 1, of the Constitution of 1870. . . . 

Independently of the conclusion of this provision, it can not be suc¬ 
cessfully denied, and is not disputed, that the legislature would have 
had the right to make the furnishing of ‘satisfactory evidence’ of the 
payment of poll tax a prerequisite to voting, and its non-furnishing an 
indictable offense, and the original Act of 1890, which we have cited, 
confined itself to these general terms. The first amendatory Act of 1891 
provided that the ‘satisfactory evidence’ should consist of the original 
poll tax receipt, or a duly certified copy, or an affidavit that the voter 
had paid his poll tax, or that his receipt was lost or misplaced. Acts 
1891, p. 436. The act we are considering enumerated these, and added 
provision for certificate when paid to a constable—not an enlargement, 
but rather an explanatory provision covering case of such payment, 
which might have been of doubtful construction under the first Act of 
1891. 

“The objection made to the act is not that the legislature could not 
prescribe that ‘satisfactory evidence’ should be furnished, nor is it 
objected that the legislature, in prescribing that such evidence should 
be a receipt for payment, or a certified copy, or the affidavit of the voter 
that he had paid the tax, and had such receipt which was lost or mis- 


398 


TENNESSEE CONSTITUTIONAL LAW. 


placed, was the requiring of evidence not satisfactory, or the require¬ 
ment of evidence difficult to make, or which, in any event, could exclude 
the voter from the exercise of his right to vote. It is obvious that to 
require the original alone, or either the original or copy of receipt, as 
the only evidence, might make voting a matter of difficulty, and, in case 
of loss, an impossibility; but when to these is added the provision that 
the voter’s own affidavit of their loss is sufficient to enable him to vote 
without them, it is obvious that no hindrance is imposed to his free and 
unobstructed right of suffrage. It can not be denied that the original 
receipt was good evidence, nor in its absence that a certified copy is 
good evidence. It is only in favor of the right, however, that the legis¬ 
lature makes them ‘satisfactory,’ for it might be true that a voter might 
have either, and yet not in fact have paid the tax. So it is true that 
his affidavit might be false, and still it is made evidence. In other 
words, the legislature has left with the voter, unhampered and unhin¬ 
dered, the opportunity, as well as the right, to furnish such satisfactory 
evidence in the kind of evidence prescribed, and having done so, have 
no more nor less discharged, than it was authorized to do, its constitu¬ 
tional duty. If, under the guise of requiring satisfactory evidence, it 
had acted arbitrarily and contrary to the spirit of the Constitution, if 
not to its letter, its action might well have been held void, but when it 
adopts, even under that part of the constitutional article requiring the 
offering of satisfactory evidence, only the production of that evidence 
which all mankind would deem to be such as the voter could easiest 
make, and which is most naturally expected to establish the fact to be 
shown, it could not be held that the legislature had transcended its 
power under the Constitution, had the first clause of section 1 of article 
4 stood alone. 

“But the clause in question does not stand alone. It was obvious to 
the Constitution makers that fraud and force might be attempted in our 
elections, as they had been everywhere else, and so it was deemed 
proper, though it was probably not essential (for, in the absence of 
restriction by the Constitution, the legislature would have possessed 
general power on this subject, as all others of legislative nature), to add 
specific power to enact laws ‘ to secure the freedom of elections and 
purity of the ballot box,’ thus putting its constitutional authority 
beyond cavil under the general terms of the Constitution as to ‘ satisfac¬ 
tory evidence;’ but, under such terms, repeated only and literally in a 
statutory enactment (as was the case in the Act of 1890), and leaving 
this phrase to be construed as might best accord with the capacity, 
judgment and partisan bias (where it might exist) of all the thousands 
of judges of elections who would thereafter have to construe and give 
it effect, it is clear that no greater source of oppression and impurity of 
the ballot box could be conceived than might be originated in diverse 


THE ELECTIVE FRANCHISE. 


399 


and improper construction and exercise of such undefined power by the 
judges of election. Voters might be denied the privilege of suffrage 
upon the most false and flimsy pretexts of the insufficiency of their 
evidence of payment of poll tax, aud, on the other hand, might be per¬ 
mitted improperly to exercise it upon the most unsatisfactory, and, 
indeed, upon no evideuce, provided the judges of election should hold 
themselves satisfied with whatever was offered or with none. 

“The framers of the Constitution, therefore, did not intend to leave 
the legislature, by any restriction, powerless to prevent this result, but 
especially, along with this declared authority to legislate on the poll tax 
provision so as to designate the time preceding election for which it 
should be paid and ages within which it should be paid, authorized it, 
on this and all other subjects, to enact such laws as would secure the 
freedom of elections and the purity of the ballot box. Within proper 
limits, the legislature is the judge of what such laws should be, and it 
was clearly within their province to say that this was such a law. Cook 
v. The State, 6 Pickle, 407. It is obvious, too, that it is so in fact. We 
have already shown that the evidence which the act declares to be satis¬ 
factory is that most naturally and most easily obtainable, and to be 
made by the voter, and that only which ordinarily and by common 
consent is assumed by all to be the acceptable evidence of the fact of 
payment. 

“But we have also suggested that while, for all convenient and 
practical purposes, it is the most available and best evidence, it is not, 
in fact, the best. The best evidence which could be required, perhaps, 
by any judge of election would be the actual paymeut in their presence, 
by the voter, of his tax to the collector. Now, suppose, under the Con¬ 
stitution, the legislature had no power to prescribe what should be 
satisfactory evidence, and the phrase left in geueral terms to the judges 
of election for their construction aud their guidance, and that some or 
all judges would be satisfied with no less evidence than that suggested, 
it is obvious that such view would be subversive, practically, of the 
right of suffrage. So, other modes of proof might be demanded—as, that 
the voter should produce witnesses, to prevent imposition of forged 
receipts on the judges, and then witnesses of the good character of 
these, that the judges might be thoroughly satisfied. And so illustra¬ 
tions might be multiplied of the various constructions which, naturally 
and innocently, different judges of election might put upon these words, 
to say nothing of the multiplied frivolous aud false constructions which 
extreme partisan officials might give to them to defeat or obstruct the 
votes of those who should be of another political party than that of 
the judges. 

“And, too, in the matter of permitting voters to cast their ballots on 
* satisfactory evidence’ of poll tax payment, what diversity of construe- 


400 


TENNESSEE CONSTITUTIONAL LAW. 


tiou would prevail? Iu one case the mere statement of the voter would 
be deemed satisfactory, in another not; and so of unsworn statements 
of other witnesses for the voter. And, again, because some one of the 
judges, or others, knew, or did not know, that he had voted at a former 
election in the same year, or because he was good for the tax, he is pre¬ 
sumed to have paid it, or, being honest, that presumption is indulged f 
or because somebody would say that they had heard the collector say 
this tax was paid, or that all poll tax of the given county was paid,, 
hence no special evidence in the particular case is required, etc. These 
illustrations, too, might be multiplied indefinitely, but the ones given 
are sufficient to show how differently and erroneously might be con¬ 
strued and applied the general terms used in the Constitution if it was 
not permitted to be given one easy, fixed, plain, and natural limitation 
by the legislature; or, speaking more accurately, if the legislature was 
not permitted to prescribe just, plain, easily observable offerings of 
proof as the ‘satisfactory evidence’ pf the Constitution, and thus 
destroy the facility to suppress the freedom of elections and to sully 
the purity of the ballot box, which lurks beneath the dangerous limits 
of this general phraseology. 

“It was not only, therefore, within the power of the legislature, but 
it was the duty of that body to pass some such law as would define this 
evidence and compel judges of election to accept it when offered, in all 
cases alike, and thus enable every voter in Tennessee to cast his free 
and unhindered ballot, and at the same time to prevent the denial to 
any voter, however low and humble, ignoraut or illiterate, of such right 
by the adoption of such method of evidence as he could get, or, if he 
could not get, could give himself, when he went to vote, and thus make 
it impossible for him to be cheated out of the privilege of voting under 
the constitutional provision on this question. On the general question 
of the validity and strict binding effects of such laws as require not 
merely the existence of certain facts, but particular proof of their 
existence to be made, as a prerequisite to voting, there is no doubt, and 
we refer to a few of the authorities where the question is more elaborately 
considered. It is too well settled now to need argument or extended 
statement. Payne on Elections, sec. 451; Brightly’s Leading Cases on 
Elections, p.452; Cusack’s Election, 136; Pa. St. Rep., 476; Cooley’s 
Const. Lim., p. 758; 13 Penn. Co. Rep., 344; In re Duffy, 4 Brewster. 
And, that a vote cast without such prerequisite proof of fact is illegal, 
though the fact existed, is well recognized. Some of the cases referred 
to, and numerous others, cover this proposition. 

“ These are on the general subject, but the express language of our 
Constitution is not (merely) that the voter shall pay, but that ‘he shall 
give to the judges of election satisfactory evidence of payment, . . 
without which his vote can not be received.’ The statute, in pursuance 


THE ELECTIVE FRANCHISE. 


401 


of this provision, requires the giving of such satisfactory evidence, and 
makes the failure to do so an indictable offense. The court makes nei¬ 
ther the Constitution nor the law, but upon it is devolved the duty of 
applying them, and so doing, we are left no alternative but to hold the 
indictment in this case valid. The judgment of the Circuit court is, 
therefore, reversed and the case remanded for trial.” 95, 723. The 
State v. Old. 1895. 

Art. 4, Sec. 2. Laws may be passed excluding from the 
right of suffrage persons who may be convicted of infamous 
crimes. [Same as Const. 1834, art. 4, sec. 2.] 

Art. 4, Sec. 3. Electors shall, in all cases except treason, 
felony or breach of the peace be privileged from arrest or sum¬ 
mons during their attendance at elections, and in going to and 
returning from them. [Same as Const. 1834, art. 4, sec. 3; Const. 1796, 
art. 3, sec. 2.] 

Art. 4, Sec. 4. In all elections to be made by the general 
assembly the members thereof shall vote viva voce, and their 
votes shall be entered on the journal. All other elections shall 
be by ballot. [Same as Const. 1834, art. 4, sec. 4. Const. 17%, art. 3, sec. 3, 
provided only that “All elections shall be by ballot.’’] 


26 


402 


TENNESSEE CONSTITUTIONAL LAW. 


ARTICLE V. 


IMPEACHMENT. 

Article 5, Section 1. The house of representatives shall 
have the sole power of impeachment. [Same as Const. 1834, art. 5, 
sec. 1; Const. 1796, art. 4, sec. 1.] 

Art. 5, Sec. 2. All impeachments shall be tried by the 
senate. When sitting for that purpose the senators shall be 
upon oath or affirmation, (and the chief justice of the Supreme 
court, or, if he be on trial, the senior associate judge, shall pre¬ 
side over them). No person shall be convicted without the con¬ 
currence of two-thirds of the senators sworn to try the officer 
impeached. [Const. 1834, art. 5, sec. 2, did not contain provision in paren¬ 
thesis, but was otherwise the same.] 

[Const. 1796, Art. 4, Sec. 2. “All impeachments shall be tried by the 
senate. When sitting for that purpose the senators shall be upon oath or 
affirmation.’’] 

[Const. 1796, Art. 4, Sec. 3. “No person shall be convicted without the 
concurrence of two-thirds of the members of the whole house.’’] 

Art. 5, Sec. 3. The house of representatives shall elect 
from their own body three members whose duty it shall be to 
prosecute impeachments. No impeachments shall be tried until 
the legislature shall have adjourned sine die , when the senate 
shall proceed to try such impeachment. [ Same as Const. 1834, art. 5, 
sec. 3.] 

Art. 5, Sec. 4. The governor, judges of the Supreme court, 
judges of the inferior courts, chancellors, attorneys for the State, 
treasurer, comptroller, and secretary of State, shall be liable to 
impeachment whenever they may, in the opinion of the house 
of representatives, commit any crime in their official capacity 
which may require disqualification; but judgment shall only 
extend to removal from office and disqualification to fill any 
office thereafter. The parties shall, nevertheless, be liable to 
indictment, trial, judgment, and punishment according to law'. 
(The legislature now has, and shall continue to have, power to 
relieve from the penalties imposed any person disqualified from 
holding office by the judgment of a court of impeachment. 1 ) 
[Const. 1834, art. 5, sec. 4, did not include the treasurer and comptroller, nor 
the clause in parenthesis, but was otherwise the same.] 

[Const. 1796, Art. 4, Sec. 4. “The governor and all civil officers under 
this State shall be liable to impeachment for any misdemeanor in office ; but 
judgment, in such cases, shall not extend further than to removal from 
office, and disqualification to hold any office of honor, trust or profit under 
the State. The party shall nevertheless, in all cases, be liable to indictment, 
trial, judgment, and punishment according to law.] 


OTHER CIVIL OFFICERS — REMOVAL FROM OFFICE. 

Art. 5, Sec. 5. Justices of the peace, and other civil officers 
not hereinbefore mentioned, for crimes or misdemeanors in 
office, shall be liable to indictment in such courts as the legisla¬ 
ture may direct; and, upon conviction, shall be removed from 
office by said court as if found guilty on impeachment, and 
shall be subject to such other punishment as may be prescribed 
by law. 1 [ Same as Const. 1834, art. 5, sec. 5.] 

Power of the Governor to Appoint and to Remove Officials—Tenure of 
Office.—S hackleford, J.: “What is the legal effect of this power of 
appointment when no tenure of office is fixed by the Constitution or 


1 See Fields v. The State, art. 1, sec. 8, p. 29; Cross v. Mercer, art. 6, sec. 15; also 88, 754. 



OTHER CIVIL OFFICERS —REMOVAL FROM OFFICE. 


403 


laws of the State? Does the officer appointed hold the office during 
good behavior (which is the same thing in contemplation of law) during 
his life, or is it to be held at the will and discretion of the appointing 
power, and subject to removal at pleasure? It is insisted, under the 
Constitution and laws of the State, the governor has no power of 
removal, consequently the commissioner held his office during good 
behavior, unless he is removed by the judgment or decree of some 
court, as provided in sec. 5, art. 5, of the Constitution of the State. 
This question has not been before this court, that we are aware of, but has 
been before the Supreme court of the United States and some of the 
courts of the different States, and has been settled by the practice and 
usage of the government of the United States for more than half a cen¬ 
tury. The provisions of the fourth section of article second of the Con¬ 
stitution of the United States is, in effect, similar to the fifth section of 
article fifth in our Constitution, relative to the removal of officers for 
crimes and misdemeanors. Our Constitution and the Constitution of the 
United States is silent with respect to the removal of officers, wheu the 
tenure is not fixed, except for crimes and misdemeanors. The Constitu¬ 
tion of the State provides for the tenure of judges, attorney-generals, 
clerks, sheriffs, justices of the peace, and other officers therein specified, 
consequently they hold their offices for the periods therein fixed, unless 
removed by due process of law. It can not be admitted, under our Con¬ 
stitution, that where no tenure is fixed the person appointed and filling 
the office should hold it during good behavior. 

“This question came before the Supreme court of the United States 
in the case of ex parte Hennem, and reported in 13 Peters, 256. The 
case was: The clerk of a District court of the United States had been 
removed from office by the presiding judge. It was held, there being 
no tenure of office fixed by law, that the power of removal existed— 
that the power of appointment necessarily involved the power of 
removal. The same power of removal is vested in the president of the 
United States where the power of appointment is given him. This has 
been often exercised and acted upon by him. In the case of Aaron 
Goodrich, who was appointed by General Taylor, then president, chief 
justice of the territory of Minnesota, he was removed by Mr. Filmore, 
the president of the United States, and his action was sustained by the 
courts. In the case of Avery against the inhabitants of Tyringham, 3 
Mass., 177, it was settled as a general rule that an office is held at the 
will of either party, unless a different tenure is expressed in the appoint¬ 
ment, and the power of removal was recognized. In the case of Leman 
v. Sutherland, 3 Sergeant & Rawle, 145, the question in that case turned 
upon the construction and laws of Pennsylvania. By the Constitution 
of that State it was provided the governor shall appoint all officers 
whose office is established by law, and whose appointments are not 


404 


TENNESSEE CONSTITUTIONAL LAW. 


otherwise provided for. The court says: 'The Constitution is silent as 
to the removal of officers, yet it has been generally supposed the power 
of removal rested with the governor, except in those cases where the 
tenure was during good behavior.’ In sec. 1537 of Story’s Commentaries 
on the Constitution he says: ‘It is observable that the Constitution 
makes no mention of any power of removal by the executive of any 
office whatever. As, however, the tenure of no officers, except those in 
the judicial department, is by the Constitution provided to be during 
good behavior, it follows, by an irresistible inference, that all others 
must hold their office during pleasure, unless congress shall have given 
some other duration to their office.’ 

“ The Act of the 26th of February, 1868, conferring upon the gover¬ 
nor the power to remove for dereliction of duty, fraud, or other irregu¬ 
larities, does not limit and control the power of the governor in remov¬ 
ing for these causes alone. It was not designed or intended by the 
legislature that he should hear proof and determine as a judicial officer, 
whether the appointees were guilty of fraud or dereliction of duty, and 
to restrain the power of removal vested in him under the settled rules 
of law. We are satisfied upon principle and authority, that there being 
no tenure of office fixed for the commissioner of registration, and the 
power of appointment having been vested in the governor of the State 
for filling said office, the law vested in him the power of removal, and 
that he holds his office at the will and pleasure of the governor of the 
State.” 46, 489. Williams v. Bougner. 1869. 


POWER OF LEGISLATURE TO ESTABLISH COURTS. 


405 


ARTICLE VI. 

THE JUDICIAL DEPARTMENT. 

Power of Legislature to Establish Courts. 


PAGE. 


Judicial Department Sovereign in Its 

Sphere. 340 

Judicial Power Confined to Courts, Not 

Given to Legislature. 198 

Duty and Responsibility of Courts in De¬ 
claring Statute Unconstitutional... 49 
Judicial Officers of Municipal Corpora¬ 
tions..,.282 


•Corporations, Municipal and Private — 
Powers—Increasing and Diminish¬ 
ing Same. See Art. 11, Sec. 8, The 
State v. Wilson. 

Authority of Supreme Court to Order 
Clerk of Inferior Court to Execute 
Order of Sale—Judge and Clerk of 
Inferior Court. .See Art. 6, Sec. 2, 
Northern v. Barnes. 


PAGE. 

Criminal Courts—Act Establishing. 408 

Circuit Court Judge—Term of Office—Com¬ 
pensation—Legislature May Abol¬ 
ish Office—Salary for Whole Term.. 408 
Chancery Courts—Increase of Jurisdiction. 409 
County Court—Jurisdiction and Powers 
Purely Statutory—Can Not Release 
Individual or Corporation from 
Payment of Taxes for County Pur¬ 
poses .414 

County Judge—Term of Office—Is Judge of 
“Inferior” Court — Vacancy. See 
Art. 7, Sec. 5, The State ex rel. v. Ma¬ 


loney. 

Removal of County Judge. 432 

Special Courts. 409 


Conferring Jurisdiction on Single Justice.. 405 


Article 6, Section 1 . The judicial power of this State 
shall be vested in one Supreme court and in such circuit, chan¬ 
cery , 1 and other inferior- courts, as the legislature shall from 
time to time ordain and establish, in the judges thereof, and in 
justices of the peace. The legislature may also vest such juris¬ 
diction in corporation courts as may be deemed necessary. 
Courts to be liolden by justices of the peace may also be estab¬ 
lished. : 

[Const. 1834, Art. 6, Sec. 1. “The judicial power of this State shall be 
vested in one Supreme court and in such other inferior courts as the legisla¬ 
ture shall from time to time ordain and establish, in the judges thereof, and 
in justices of the peace. The legislature may also vest such jurisdiction in 
corporation courts as may be deemed necessary.”] 

[Const. 17%, Art. 5. Sec. 1. “The judicial power of the State shall be 
vested in such superior and inferior courts of law and equity as the legisla¬ 
ture shall from time to time direct and establish.”*J 


Conferring- Jurisdiction on Single Justice.— The question was the con¬ 
struction of the ‘Act of 1801, oh. 7, sec. 1, as to its literal meaning, also 
as to its constitutionality. On the latter point the court said: “ In the 
case of Stuart 5 against Windal in the old Superior court, it was decided 
that the Constitution authorized the legislature to give a single justice 
original jurisdiction, in such cases as this, provided the right of having 
a jury trial 5 was secured to the parties, if either of them might wish it/ 
That question was regarded by the court in this case as being settled. 
2 , 235. Thompson v. Gibson. 


1 34 . 58; 39 , 254. 1 26 , 131. 

3 70 , 177; Acts 1879, ch. 180; 71 . 257: Act 1877, ch. 97; M. & V., 5043; 71 , 415 . 

MI. &. C., vol. 1, p. 202; Code 1858, 4123, sub-sec. 2; T. & S., 4123, sub-sec. 2; M. 3c V'., 4898, sub¬ 
sec. 2. 

•Unreported. 

•Supreme Court—Grken, J.: “ It is contended that this is a special court, having no relation 
to the other courts in this State, and is not, therefore, * 3 4 superior or inferior,’ within the meaning 
of the first section of the fifth article of the Constitution. . . . Upou this proposition, it will 











406 


TENNESSEE CONSTITUTIONAL LAW. 


Criminal Courts.— The Act of 1870, ch. 115, established a criminal 
court for Montgomery county. Nelson, J.: “ We are uuable to perceive 
that the act is in conflict with the Constitution of 1834 or 1870. Art. 6,. 
sec. 1, of each Constitution, authorizes the legislature, from time to 
time, to ordaiu and establish inferior courts; and we are not satisfied 
that the power to establish a criminal court was not rightfully exercised 
in this, as it had been previously in various similar cases.” 50, 114. 
Wilcox v. The State. 1871. 

Circuit Court Judge — Term of Office — Compensation — Legislature 
May Abolish Office — Salary for Whole Term. — By an act of the legis¬ 
lature, passed December 4, 1869, the Second Circuit court of Shelby 
county was created, and relator was elected judge of this court on the 
fourth Thursday in May, 1870. Under the Constitution and law he was- 
duly commissioned for eight years. On March 15, 1875, the legislature 
passed an act abolishing the office. The validity of this act was con¬ 
tested and held constitutional in the case of The State ex rel. Coleman v „ 
Campbell in a manuscript opinion by Judge Nicholson, iu which all the 
judges concurred except Judge Freeman. Relator Halsey obtained a 
peremptory mandamus against the comptroller to issue a warrant for his- 
salary to the end of his term — September, 1878 — and the comptroller 
appealed. McFarland, J., reaffirmed the decision in the case referred 
to and said: “We believe it is not denied that previous to the Constitu¬ 
tion of 1870, the legislature did possess the power to abolish Circuit and 
Chancery courts at pleasure. In fact, the very court in question was- 
created by an Act of the 4th of December, 1869, which abolished the 
system of courts previously existing in Shelby county, and established 
instead two Circuit courts, two Chancery courts, and one Criminal court,, 
one of the Circuit courts being the one now in controversy. With the 
abolition of the existing courts, the judges thereof were displaced and 
new judges elected to fill the new courts created by the act. 

“ The validity of this act was recognized by the convention of 1870 r 
and the courts continued to exist until one of them was abolished by 


only be necessary to recur to the language of the Constitution, art. 5, sec. 1, in which the judicial 
power of the State is vested in such superior and inferior courts of law and equity as the legislature- 
shall, from time to time, direct and establish. Had the framers of the Constitution intended to 
restrict the legislation upon this subject to the courts then in operation, and only meant to 
authorize an increase of them, or the number of places of holding them, they would have used very 
different language. To create a new district and appoint additional judges to hold the court 
there, or to direct the sittings of the court of pleas and quarter sessions in a new countv, would 
not be the establishment of courts in the sense here indicated. There is but one Supreme court 
in the State, although it holds sessions at several places. So the creation of new districts would 
only have been providing for the sitting of the District court at additional places. Nor can it be 
seen that it was intended to restrict legislation to the creation of such courts as should be appealed 
from, and therefore ‘ inferior ,’ and an appellate court, which would be therefore 4 superior.’ The 
right of appeal is only conferred by statute. No constitutional provision requires that it should 
exist. This can not, therefore, be the sense of these words. It would be perfectly competent for 
the legislature to abolish the Supreme court and take away the right of appeal from the County 
to the Circuit court. Each would then exercise its own peculiar jurisdiction, and be supreme 
within its sphere of action. I conclude, as a necessary consequence from what has been said 
that the legislature has power to create as many different courts as the wants of the country may 
require, and each to be as distinct and independent of the other as the court now under consid¬ 
eration is distinct and independent of all others in this State.” 10, (101. Bank v. Cooper 1831 
The above decision probably caused the alteration in the Constitution of 17% by the conven¬ 
tion of 1834. 



POWER OF LEGISLATURE TO ESTABLISH COURTS. 407 

the Act of 1875, before referred to. This was by no means the only 
instance in which the legislature exercised the power of establishing 
and abolishing courts as the public necessity demanded under the Con¬ 
stitution of 1834. And, in fact, we do not understand that it is seriously 
denied that the power existed, until the adoption of the Constitution of 
1870. Now the only difference in these parts of the Constitutions of 
1834 and 1870, in reference to the creating of courts, is this: By the 
Constitution of 1834, ‘ the judicial power of the State was vested in one 
8upreme court, in such inferior courts as the legislature may from time 
to time ordain and establish, and in the judges thereof/ By the Con¬ 
stitution of 1870, ‘the judicial power of this State is vested in one 
Supreme court, and in such circuit, chancery, and other inferior courts 
as the legislature shall from time to time ordain and establish, and in 
the judges thereof,’ etc. The difference is, that in the Constitution of 
1870, ‘Circuit and Chancery courts’ are expressly named as some of the 
inferior courts that the legislature may from time to time ordain and 
establish. It will be borne in mind that there is no clause in either 
Constitution, in terms or by implication, prohibiting the legislature from 
abolishing any of the inferior courts after they have been once estab¬ 
lished. We have seen that under the Constitution of 1834, it was left to 
the legislature to determine how many inferior courts were necessary to 
meet the public demand, and to ordain and establish them accordingly, 
and in so doing to abolish courts previously existing and substitute 
others in their places, and necessarily to increase and diminish the num¬ 
ber at pleasure. The legislature also had power to determine the char¬ 
acter of the inferior courts, whether the Circuit, Chancery, or other 
courts. 

“In this latter respect the Constitution of 1870 makes a change. 
Circuit and Chancery courts are specified as some of the inferior courts, 
to be established by the legislature from time to time, and it may be 
conceded that the two systems are therein recognized, and it may be 
further conceded that the legislature has no power to abolish either 
system. But was it ever supposed by the framers of the Constitution 
that they were depriving the legislature of the power to judge and 
determine how many Circuit and Chancery courts were necessary to 
dispatch the public business in the difierent counties of the State? It 
was known that under the previous Constitution the power to determine 
the number was left to the legislature, and if a change in this respect 
was intended, it would have been easy to so express the intention in 
unmistakable language, and surely it would have been so expressed. 
The Constitution of 1870, while it recognizes Circuit and Chancery courts 
as part of the inferior courts of the State, does not recognize any par¬ 
ticular number of them, or specify how many of them shall exist. . . 
The truth is, the legislature has the power, in many ways, to destroy 


408 


TENNESSEE CONSTITUTIONAL LAW. 


the government. The remedy, where the legislature attempts to exer¬ 
cise power it does not possess, is in the courts, but where it simply 
abuses power that it does possess, the remedy is with the people at the 
ballot box. 

“But it is argued that although by the foregoing construction, the 
legislature may have power to abolish the courts when they become 
unnecessary, that the abolition of the court can only take effect at the 
expiration of the judge’s term, otherwise we defeat that clause of the 
Constitution which says that the judge’s shall be eight years. If the 
framers of the Constitution intended to leave it to the legislature to 
establish and abolish courts as the public necessities demanded, this 
was not qualified or limited by the clause as to the judge’s term of 
office. To so hold, would be to allow the clause as to the length of the 
judge’s term to overthrow the other clause, whereas we construe the 
provision that the judge’s term shall be eight years to be upon the 
assumption that the court continues to exist j otherwise we should have 
to hold that the court must continue, although declared unnecessary 
and abolished by the legislature, simply to secure to the judge his full 
term and salary. . . . Our Constitution does not recognize a judge- 

ship except as the judge is the incumbent of a court or courts which he 
is commissioned to hold. We have no supernumeraries, and although 
while he holds the office he may interchange with other judges and 
exercise the functions of his office in any part of the State, it can hardly 
be maintained that the relator has in fact continued to be a judge from 
the time his court was abolished until his term expired. He does not 
aver that he has exercised the functions of a judge, and had he done 
so, his acts would no doubt have been void. 

“The argument is further pressed upon these provisions of the Con¬ 
stitution relating to a judge’s term of office, his salary, and also the 
mode of his removal. These provisions, in brief, are, that the term of 
the circuit judge or chancellor is eight years. He shall receive at stated 
times a compensation to be ascertained by law, which shall not be 
increased or diminished during the term for which he was elected- 
Speaking of these provisions, Judge Nicholson, in the opinion referred 
to, says: ‘We have not deemed it necessary to discuss the bearing upon 
the case of the provisions of the Constitution which provide for the 
salaries and term of service of the judges, for the reason that we con¬ 
sider it too clear for argument, that if the law abolishing the courts is 
valid, the offices and their incumbents necessarily cease, and of course 
along with them their salaries. In our own view of the Constitution,’ 
he continues, ‘the judge’s right to his full term and his full salary is not 
dependent alone upon his good conduct, but also upon the contingency 
that the legislature may, for the public good in ordaining and establish¬ 
ing the courts from time to time, consider his office unnecessary and 


POWER OF LEGISLATURE TO ESTABLISH COURTS. 


409 


abolish it. The exercise of this power of the legislature is neither such 
as interferes with the indepeudeuce of the judge or with his term of 
office, or can be properly complaiued of.’ We approve and adopt this 
language. The judge's term of office is eight years. The legislature 
has no power to change the length of his term, either by direct or indi¬ 
rect legislation. His salary can not be increased or diminished during 
his term, and he can not be removed except in the manner pointed out 
in the Constitution, or by impeachment, but all this assumes that the 
office still exists. To dispense with an unnecessary court is not to 
change his term of judgeship, or is it to affect the guaranties of the 
Constitution as to his salary, nor does it remove the judge from office. 
The office no longer exists, and of course a removal from an office that 
has no existence is not a conceivable proposition. . . . 

“ These provisions of the Constitution were intended for the protec¬ 
tion and benefit, not of the judge alone, but of the people, to secure a 
judiciary free, as far as possible, from improper influences, and there¬ 
fore the term is fixed. The salary is to be ascertained by law, and not 
increased or diminished during his term, and he can not be indirectly 
removed. But the framers of the Constitution never intended to say 
by these provisions that unnecessary courts should uot be abolished, or 
if abolished, that the judges should continue to receive their compensa¬ 
tion as before. The provisions of the Constitution as to the duratiou of 
the judge's term and his salary were intended to be of no higher sanctity 
than the other provisions. They are parts of the same Constitution 
under which the legislature is expressly given the power to ordain and 
establish courts from time to time, and, as we have seen, to abolish 
them. The different parts of the Constitution are to be construed 
together. While the court existed these provisions should be enforced 
in favor of the judges and the people, but where the courts were abol¬ 
ished, to continue them in force in favor of judges after they had ceased 
to be judges would, we thiuk, violate the spirit of the organic law, and 
out of too tender a regard for the supposed rights of one man, injure 
the rights of the balance of the people.” Freeman, J., dissented. 
70, 318. The State ex rel. Halsey v. Gaines , Compt. 1879. 

Special Courts. —T. S. Webb, Sp. J. In this case the doctrine was 
reaffirmed that the legislature has power to create and establish special 
courts. 92, 85. 'Ellis v. The State. 1892. 

Chancery Courts—Increase of Jurisdiction—Art. 6, Sec. 8—Object of 
—Trial by Jury—Art. l, Sec. 6.—The 'act of the legislature, passed 
March 23, 1877, conferring jurisdiction on the Chaucery courts “of all 
civil causes of actiou now triable in the Circuit court, except for injuries 
to person, property, or character, involving unliquidated damages,” was 

1 See same rase. art. 1. sec. 9, p. SI; art. 10, sec. 4. i M. A V., 504:5. 


410 


TENNESSEE CONSTITUTIONAL LAW. 


considered from a constitutional standpoint. Freeman, J.: “The law 
under discussion must, then, be tested by its accord with the Constitu¬ 
tion, understood by the light of the existent state of things at the time 
and previous to the adoption of the Constitution. It is an enactment of 
the legislature of the State, and is operative unless in violation of the 
express terms or fairly implied provisions of that instrument. No¬ 
express prohibition to its enactment is found. It can only be attacked, 
then, by finding a clearly implied or fairly inferred prohibition. This is 
to be made out from the language quoted distributing the judicial power,, 
that is, that ‘it shall be vested in such circuit, chancery and other 
inferior courts as the legislature shall, from time to time, ordain and 
establish/ The conclusion sought involves the affirmation of the propo¬ 
sition that this language, by fair and just implication, fixes and defines 
the limits of the jurisdiction of these courts. This must be so, for if 
it does not fix or define the limits of jurisdiction, then the legislature 
could not have violated its requirement by increasing the jurisdiction of 
the Chancery court, that is, simply extending the sphere of the powers 
of that court. This is a legitimate exercise of the law-making power,, 
unless some limit is prescribed to its exercise by the Constitution. 
There being, as conceded, no express prohibition on this power in the 
Constitution, the inferential prohibition must be had from the article 
cited. This inference necessarily involves the idea that the true limita¬ 
tions upon the jurisdiction of these courts may be ascertained from the 
language used, by reference to the words used, or from their fair con¬ 
struction in the light of existent things at the time of the adoption of 
the Constitution. The proposition to be maintained is, the law is pro¬ 
hibited by the language, or fair implication drawn from it, of the Con¬ 
stitution. The language contains no prohibition that reaches the ques¬ 
tion—the implication must, or the proposition fails. 

“ The theory on which the argument must rest is, that the constitu¬ 
tional establishment or recognition of the Chancery court, necessarily or 
by lair implication, involves the proposition of this court, with its then 
defined jurisdiction, was the purpose of the convention; that is, by the 
clause of the Constitution not only is the judicial power distributed and 
courts mentioned ordained, but the jurisdiction of these courts also 
defined and their limits fixed. The only conceivable limit that could be 
fixed on their jurisdiction by the simple fact of their ordination would 
be that which they then possessed, for the inference must be drawn or 
implication made from their designation as Circuit and Chancery courts,, 
and the idea that is conveyed by these terms in connection with the 
actual fact or existence and traditions appertaining to that existence in 
our State polity at the time. 

“In order to make this influence effective to defeat the law before 
us, there must be derived from this section of the Constitution not only 


POWER f»F LEGISLATURE !« • ESTaELI-H COURT- 


411 


the existence of such coons, but also a rixed and denned boundary, 
either in fact or with reasonable certainty to be ascertained, or else 
there could be no violation of the constitutional jurisdiction that would 
invalidate an enactment of the legislature either Increasing or changing 
the limits of that jurisdiction. An undefined limitation would be impos¬ 
sible to be enforced, for its boundaries could not be ascertained so as to 
mark the point when the legislature trespassed upon the constitutional 
inhibition. This seems too clear for doubt or argument. The limit must 
be fixed, the boundaries of this jurisdiction defined by the language of 
this section, or else the legislature is free to act as it may deem the 
public interest shall require. As we have said, we think the only con¬ 
ceivable limit that can be with any plausibility inferred in the ease is that 
the jurisdiction then possessed and exercised by the Chancery court was 
intended to be fixed and established as its constitutional jurisdiction. 
Erom this view it would follow, however, that there could be no change 
in that jurisdiction after the adoption of the Constitution, certainly none 
by the legislature, unless we assume that a change or alteration could 
be made by the legislature in the Constitution itself, or that body have 
the right to give or take away what was prohibited or not given by the 
Constitution. This will not be claimed. This proposition involves, then, 
the fixedness, for all time, of the jurisdiction of this court, a constitu¬ 
tional congelation of the unstable elements of jurisdiction into a defined 
mass that can not be diminished or enlarged by legislative action. 


- in this we think the argumeut would prove more than its advocates 
would be willing to maintain. The Chancery court has been steadily 
advancing and widening the boundaries of its jurisdiction from its 
earliest history down to the present day. We nee*I but to refer to the 
familiar contest between Lord Coke and Ellesmere, in the days of James, 
as to the power of a court of chancery to enjoin parties from proceed¬ 
ing at law. in which the power was stoutly denied by Coke, aud as 
earnestly insisted on by the chancellor. The court of chancery, as we 
know, succeeded in maintaining its ground, and thereby established its 
enlarged jurisdiction. Our books are full of such instances, familiar to 
any lawyer. Was it intended to stop and put an iron barrier in the way 
the development of this source of jurisdiction of this court? We 
apprehend it will hardly be so contended, yet the argument inevitably 
leads to this, for if the Constitution has fixed, by any ascertainable 
limits, the jurisdiction of the court, then the court could no more 
increase or accrete jurisdiction than could the legislature confer it. 
Tbe one would be as much bound by the Constitution as the other. To 
oth. the Constitution is the supreme law before which they must yield. 

mis: r i : .is ' 

can be held to violate the Constitution that enlarges these limits. Again, 
the Circuit court is ordained and established in precisely the same lan- 


412 


TENNESSEE CONSTITUTIONAL LAW. 


guage as is the Chancery court, and the same rules would have appli¬ 
cation. . . . 

“ The language of the eighth section of the same article is: 4 The juris¬ 
diction of the Circuit, Chancery, and other inferior courts, shall be as 
now established by law, until changed by the legislature/ If the con¬ 
vention had stopped at the first clause of this section, it would have 
been precisely the provision which would have sustained the argument. 
The jurisdiction of all these courts would have been unalterably fixed 
within the limits as then defined and ascertainable by the then existent 
law. But we are compelled to give effect to the other clause. It is 
equally a part of the Constitution—that is, until changed by the legis¬ 
lature. This language must be taken, as other language, to mean what 
it says, and a fair construction of it be given. It can only mean, we 
think, that there was no change made, or intended to be made, by the 
convention in the then existent jurisdiction of these courts, but that 
such change of jurisdiction—that is, enlargement or diminution of their 
sphere of action—was to be left, and was authorized to be made by the 
legislature. . . . 

“ This clause most certainly authorized the legislature to change the 
jurisdiction of the other courts, and if so, it equally authorizes the 
change of the jurisdiction of the Chancery court, and that is all that is 
done in the act under consideration. 

“This section serves to guide us clearly as to what elements of the 
complex idea embraced in the words ‘Circuit and Chancery courts 7 were 
in the mind of the convention, and intended to be imbedded in the Con¬ 
stitution and put beyond legislative action or change. These words 
have at least two, if not more, distinct facts or elements which are con¬ 
veyed when we speak of these courts: one is of the one or other court, 
with a judge or chancellor performing the judicial functions by means 
of certain forms or machinery in a certain mode, that is the one, as we 
have said, by the forms known as common law procedure; the other, 
that known as the chancery form of procedure. These elements or 
phases of the idea of a Circuit or Chancery court are not only separable 
and distinct in thought, but equally so in fact, from the other element 
of jurisdiction or power to act judicially on a greater or less number of 
rights. While it is conceded that jurisdiction is an essential element 
for the action of a court, yet it is equally a court, whether that juris¬ 
diction be over many or few questions or subjects of judicial action. 
The extent or narrowness of the jurisdiction exercised does not at all 
go to the idea of its existence intact, but only its efficiency to perform 
a larger or smaller function as an agency of government. This hardly 
need be illustrated. The court of chancery was as much a court of 
chancery in the days when its jurisdiction was confined to a few sub¬ 
jects as it is now, since its jurisdiction has, by gradual encroachment 


POWER OF LEGISLATURE TO ESTABLISH COURTS. 


413 


and accretion, been extended so as to embrace in some form the largest 
mass of the questions passed upon by our courts. In view of this, we 
think it clear, from the first and eighth sections of the article from 
which we have quoted, that the preservation of these courts, with their 
distinctive features, modes of procedure and organism, substantially as 
independent and separate agencies for the exercise of the judicial 
power was intended — the courts to remain intact. But the matter of 
their jurisdiction is not so fixed, nor was it so intended. This was to 
remain as then, until changed by the legislature. To what extent the 
jurisdiction thus left under control of the legislature may be changed, 
we could not definitely determine. The existence, however, of these 
courts as parts of ’the judicial power of the government, is beyond the 
power of the legislature to destroy. The courts are to be preserved 
intact, but what shall be the matter over which they shall exercise their 
powers subject to certain limitations involved in other clauses of the 
Constitution, is left to legislative discretion. . . . 

“The act under consideration seems free from all objections. It does 
not deprive the Circuit court of any of its jurisdiction—leaves that pre¬ 
cisely where it stood before. It only adds to the jurisdiction of the 
court of chancery by giving it concurrent jurisdiction over all civil cases 
except those specially mentioned as excluded. In fact, it has but goue 
one step further than was the law before. . . . The exercise of the 

power to increase the jurisdiction of a court, thereby giving it a more 
enlarged field of operation, does not involve the power to do the oppo¬ 
site, that is, to destroy. Whenever any law shall be passed with any 
such purpose, or any direct tendency to produce this result, we shall 
promptly strike it down as in violation of the Constitution which estab 
fished this court. But seeing no such purpose in this act, we can not 
arbitrarily assume it to exist. 

“It is said the clause of the Constitution providing that the jurisdic¬ 
tion of the court shall remain until altered by the legislature was only 
intended to secure the jurisdiction as it was—rebut the idea of change. 
This can not be, for two reasons: first, the jurisdiction of these courts 
would have remained as it then stood without this clause; second, all 
laws are expressly kept in force not inconsistent with the Constitution 
by another clause. To give this clause any meaning it must be held a 
reservation of power to alter the jurisdiction of the courts established, 
and as a matter of course to enlarge or diminish, or else there could be 
no alteration. 

“The only other objection to be noticed is the objection that by con¬ 
ferring the jurisdiction here given on the Chancery courts, the right of 
trial by jury is impaired, as guaranteed by article 6 of the Bill of Rights. 
Several conclusive answers may be given to this. First, if the power to 
enlarge and alter the jurisdiction is given in the Constitution, whenever 


414 


TENNESSEE CONSTITUTIONAL LAW. 


it is rightfully conferred on the Chancery courts, then that jurisdiction 
may be exercised according to the forms by which such courts are 
accustomed to administer remedies. This article in the Bill of Rights 
was never understood to apply to the administration of the law in such 
courts, and it has been held so in many other cases, such as formerly in 
cases of bastardy. Kirkpatrick v. The State, Meigs, 124.” Cooper, J., 
dissented. 71, 597. Jackson, Morris & Co. v. Nimmo & Thornhill. 1879. 

County Court—Jurisdiction and Powers Purely Statutory—Can Not 
Release Individual or Corporation From Payment of Taxes for County 
Purposes. —The County court of Wilson, as an inducement to complain¬ 
ant company to extend its line of ro^d from Lebanon eastwardly to 
Knoxville, released from the payment of taxation for county purposes 
all the property then or thereafter in that county for a period of fifteen 
years, beginning January 1, 1887. Caldwell, J.: “By statute ‘a court 
is established in each county of this State,"composed of the magistrates 
of the county, for the dispatch of probate and other business intrusted 
to it, to be called the County court/ Code (M. & V.), sec. 207. The 
powers ‘intrusted to’ the County courts thus established emanate from 
the legislature alone, hence, the measure and limit of those powers are 
to be found in the statutes, and when a power claimed for them is not 
conferred by some statute it must be held not to exist. . . . 

“ County courts possess no jurisdiction or powers but those conferred 
by statute. ... No statute has, in terms or by implication, author¬ 
ized County courts to exempt or release, upon any pretext or considera¬ 
tion whatever, the property of a railway company, consisting of its 
road-bed, rolling stock, etc., from its just proportion of taxation for 
county purposes. . . . And such release or exemption of railway 

property from county taxation is none the less ultra vires and void, 
because it was offered as an inducement for the location and building of 
a railroad, which was accordingly constructed by non-residents, result¬ 
ing in great benefits, in a general way, to the county. . . . The leg¬ 

islature has not unlimited power, under our Constitution, to authorize 
the County courts to exempt or release railway property from taxation 
for county purposes.” 89, 606. N. & K. R. R. Co. v. Wilson County. 
1891. 


JURISDICTION OF. SUPREME COURT. 


41* 


JURISDICTION OF SUPREME COURT. 


PAG*. 


County Judge—Terra of Office—Is Judge of 
“Inferior” Court—Vacancy. See 
Art. 7, Sec. 5, The State ex rel. v. Ma¬ 
loney. 

Judgment by Motion Against Surety on 

Bond of Clerk. 415 

Transfer of Chancery Causes Under Old 

Constitution and Statutes. 415 

Reasons Why this Court was Given Appel¬ 
late Jurisdiction Only—Act Direct¬ 
ing Scire Facias to Issue from 

Supreme Court, Void. 417 

Doctrine Restated—Code Provisions—Judg¬ 
ment Based on Judgment. 418 

Appellate Jurisdiction — Meaning of this 

Clause Settled. 419 

Incidental Jurisdiction. 419 


PAGE. 


“Appellate Only” Emphatic Words —Doc¬ 
trine Reaffirmed. 419 

Appeals from Division Where Tried. 420 

Meaning of Sections 1 and 2—Mode of Ex¬ 
ercising Jurisdiction Regulated by 

Legislature—Exceptions. 420 

Discussion of Agreed Case Before Judg¬ 
ment Rendered. 421 

Appeal in Forma Pauperis to Supreme Court. 421 
Mandamus Against Circuit Judges—Power 

of Supreme Court to Issue. 421 

Same—When it Will be Refused—Right to 

Award Original Process.424 

Authority of Supreme Court to Order Clerk 
of Inferior Court to Execute Order 

of Sale....,. 424 

Court of Chancery Appeals—Decree May 

be Signed by Only Two Judges. 425 


Art. 6 , Sec. 2 . The Supreme court shall consist of five 
judges, of whom not more than two shall reside in any one of 
the grand divisions of the State. The judges shall designate 
one of their own number who shall preside as chief justice. The 
concurrence of three of the judges shall, in every case be neces¬ 
sary to a decision. The jurisdiction of this court shall be appel¬ 
late only, under such restrictions and regulations as may from 
time to time be prescribed by law; but it may possess such 
other jurisdiction as is now conferred by law on the present 
Supreme court. Said court shall be held at Knoxville, Nash¬ 
ville, and Jackson. 1 

[Const. 183-1, Art. 6 , Sec. 2. “The Supreme court shall consist of three 
judges, one of whom shall reside in each of the grand divisions of the State. 

The concurrence of two of the judges shall, in every case, be necessary to a 
decision. The jurisdiction of this court shall be appellate only, under such 
restrictions and regulations as may from time to time be prescribed by law; 
but it may possess such other jurisdiction as is now conferred by law on the 
present Supreme court. Said court shall be held at one place, and at one 1 

place only, in each of the three grand divisions of the State.”] 

Judgment by Motion Against Co-Sureties on Bond of Clerk.— TUR¬ 
LEY, J., held: “The Supreme court has no jurisdictiou to render a 
judgment on motion in favor of some of the sureties of a clerk against 
their co-sureties, where a judgment had at the same term been ren¬ 
dered in a suit against the first set of sureties for the official delinquency 
of the principal.” 17 , 16. Waters et al. v. Lewis et al. 1836. 

Transfer of Chancery Causes Under the Old Constitutions and Stat¬ 
utes.—C aruthers, J.: “This case was transferred from the Gibson 
Chancery court, before auy decree, under the provisions of the Acts of 
1825 and 1829, by which the chancellor was authorized to make such 
transfer, where a case had been continued two terms, on account of the 
chancellor's incompetency. Are these acts now in force, or have they 


1 See 18 . 49. and 48 , 789. 


















416 


TENNESSEE CONSTITUTIONAL LAW. 


been superseded by the Constitution of 1834, and the Act of 1835? It 
is a question of jurisdiction, and should be deliberately settled. While,, 
on the one hand, this court would diminish or restrict its jurisdiction, 
yet, on the other, it should be as careful not to enlarge or extend it 
beyond the limits fixed by the Constitution and laws enacted in con¬ 
formity to it. This is the more important, as this is made an inde¬ 
pendent co-ordinate department of the government, and within its 
prescribed limits there is no power that can control it. It is as inde¬ 
pendent, within its proper sphere, as is the executive or legislature. 
The people have entrusted to this department the supreme judicial 
power, and placed it and its jurisdiction beyond the legislative power. 
Neither can one interfere with or control the other, in the proper dis¬ 
charge of its functions. Under the old Constitution, this was not so. 
This department was, by that, entirely the creature of the legislature. 
In art. 5, sec. 1, it says: ‘The judicial power of the State shall be vested 
in such superior and inferior courts of law and equity, as the legislature 
shall, from time to time, direct and establish.’ 

“ By the Constitution of 1834, art. 6, . . . the convention made 

this a constitutional court, and not being content even to leave the 
scope and extent of its jurisdiction to the legislature, prescribed it 
differently in the next section. . . . The last clause, it is insisted, 

covers the case before us, as by the Act of 1829 the old Supreme court 
had jurisdiction in such cases. We do not understand the new Constitu¬ 
tion to refer to any such matters. It was evidently intended, by the 
emphatic words employed—‘appellate only’—to confine the clause 
which apparently extends the jurisdiction to other cases, to such powers 
as, though not appellate, were * absolutely necessary in carrying out and 
completing the jurisdiction given; such as forfeited recognizances, 
failure of officers to return process, or false returns, motions against 
them, etc. In all these cases, important questions might arise, and even 
juries be required. So there is scope enough for that clause, without 
extending it to the case provided by the Act of 1829, by which original 
jurisdiction would be taken of regular and primary suits between par¬ 
ties. It was intended, in all controversies between parties, that they 
should have the advantage of two tribunals; first, the court established 
by the legislature, and then by appeal, the court of last resort estab¬ 
lished by the Constitution. The construction contended for, would 
defeat this provision, in the class of cases embraced. Very ample pro¬ 
vision has been made for these cases, by the legislature, showing that 
the opinion has not been entertained by that body, that the old and 
easy mode of transferring cases to this court, in all cases where the 
chancellor might be incompetent, still existed. Such cases may be 
transferred to the Circuit courts, and the chancellors interchange with 
each other, or with the Circuit judges. 


JURISDICTION OE SUPREME COURT. 


417 


“The compilers of the statutes in 1836 did not incorporate the Act 
of 1829 in their revisal, supposing it was not in force. But it is shown 
that our predecessors have, since that time, taken jurisdiction in such 
cases, and thereby evinced their opinion that the act was still obligatory 
upon this court. It does not appear that the question was ever made 
and debated before them, and we have no reported decisions upon the 
question. So we regard it as an open question, and as it involves a 
construction in relation to our jurisdiction and powers, it must be con¬ 
sidered an important one. Upon the fullest examination and reflection 
we have been able to bestow upon it, we have arrived at the conclusion 
that the Act of 1829 is not in force, and that we have no jurisdiction in 
the case.” 1 37, 434. Miller et al. v. Coulee et al, 1858. 

Reasons for Giving This Court Appellate Jurisdiction Only—Act 
Directing Scire Facias to Issue From Supreme Court Unconstitutional 
Because Involving Determination of Original Questions. — CaRUTHERS, J.: 
“In pursuance of a joint resolution of the last general assembly, a 
motion is now made by the attorney general for the issuance of a scire 
facias against the Bank of East Tennessee to show cause why its char¬ 
ter should not be declared forfeited. This bank was chartered by the 
legislature in 1843, ch. 60. By the eleventh section the legislature is 
authorized, whenever they are of the opinion that the charter of the 
corporation has been violated, ‘by joint resolution to direct a scire facias 
to issue from the Supreme court, in the name of the State of Tennessee, 
calling upon said corporation to show cause why the charter should not 
be declared forfeited.’ The court is required to inquire into the charges 
which are alleged, and to submit all issues of fact to a jury, etc. Have 
we the authority under the Constitution to exercise the powers here 
conferred—or, in other words, is this act of the legislature constitu¬ 
tional? is the first question to be considered. We can not, without a 
violation of the Constitution, to which we owe our existence as a court, 
and which we have sworn to obey, transcend the limits therein assigned 
to us. . . . 

“Art. 6, sec. 1: ‘The judicial power of this State shall be vested in 
one Supreme court;’ and such inferior courts as the legislature shall 
‘ordain and establish,’ etc. So this court of last resort is placed out of 
and beyond the power of the legislature, as to its existence and 
composition, as by the next section it is to consist of three judges only, 
and they are to reside, one in each of the ‘grand divisions of the State.’ 

So also is its jurisdiction prescribed and limited. . . . The language 

is emphatic as to the jurisdiction; it ‘shall be appellate only.’ This 
was doubtless intended to prohibit that course of legislation which had 
before and might agarn be resorted to, either because of high confidence 


1 70 . 211 . 
27 



418 


TENNESSEE CONSTITUTIONAL LAW. 


in this court, or to overburden it with business, or to save expeuse to 
parties in certain cases by shortening the road of litigation. But let the 
reason be what it may, the restriction is distinct and imperative. The 
fair inference from the lauguage adopted is, that it was the opinion of 
the convention that the labor and responsibility of correcting errors in 
the proceedings and judgments of courts of law, and the hearing of 
appeals in chaucery, for the whole State, would afford about as much 
labor as three men could well perform, without encumbering them with 
any original jurisdiction. Aud certainly it has so turned out. The 
members of the legal profession who witness the labors of this court 
will not differ as to the foresight of the convention in this respect. Yet 
whether this is so or not, or whatever reasous may have actuated them, 
they have limited and confined us to cases of appeal, by language too 
clear in its import for misconstruction. 

“In this act the jurisdiction conferred is to institute a proceeding of 
an important character against a corporation to ascertain facts, by the 
intervention of a jury, and to declare the charter forfeited in the event 
the charges are found to be true. Here, then, an important suit to 
individuals and the public is to be originated, tried, and determined in 
this court. Can there be a doubt that such jurisdiction is original aud 
not appellate? Surely not. The old Constitution did not prescribe the 
jurisdiction of this court, nor in fact create it, but left it with the legis¬ 
lative department to establish such courts as might be thought neces¬ 
sary, and assign them their jurisdiction. 

“It can not be pretended that the case falls under the latter clause 
of the section, ‘such other jurisdiction as is now by law conferred on 
the present Supreme court.' This Constitution was framed and adopted 
in 1834, and the charter under consideration was passed in 1843. No 
such jurisdiction was giveu over corporations by any general act before 
that time, and if it had it would not now exist. . . . 

“It follows that the eleventh section of the charter of the Bank of 
East Tennessee is unconstitutional, and, consequently, the motion is 
refused." 37, 575. The State v. Bank of East Tennessee. 1858. 

Doctrine Established by the Above Three Decisions Restated—Code 
Provisions—Judgment Based on a Judgment.— After reviewing the opin¬ 
ions in the cases of The State v. Bank of East Tennessee, Miller v. Con- 
lee, and Waters v . Lewis, David Campbell, Sp. J., said: “The result of 
these decisions are these: 1. That the legislature has no power to con¬ 
fer upon the Supreme court original jurisdiction in any case. 2. That 
the latter clause of the second section of the sixth article of the Consti¬ 
tution was not even intended to give the legislature the power to confer 
upon the court original jurisdiction of those cases, of which it had such 
jurisdiction iu 1834, but was designed to confine the clause to such 
powers as, though not appellate, were absolutely necessary in carrying 


.JURISDICTION OF SUPREME COURT. 


419 


out and completing the appellate jurisdiction given by the first clause 
of the second section; and 3d, that the court has no jurisdiction of a 
motion of one co-security for judgment against another. The provis¬ 
ions of the Code are in strict accordance with the results of these decis¬ 
ions. . . . The powers conferred upon this court by the provisions 

of these sections, '4498, 4499 and 5000, are the powers incident to its 
appellate jurisdiction of this court, and absolutely necessary in carrying 
out aud completing that jurisdiction, and were possessed by it wheu the 
Constitution of 1834 was adopted. The sections create and confer no 
original jurisdiction upon the court. The thing this court is now asked 
to do is not an incident of its appellate jurisdiction in the case of James 
H. Thomas et al. v. William Cullom. That case has passed into judg¬ 
ment, and is finished. The thing now urged to be done is a distinct, 
independent, collateral thing. It is not to render judgment upon a 
bond, taken in progress of that cause, but to give a judgment, based 
cither upon the judgment given in that cause in the court below, or 
upon the judgment given here, iu the part of that case brought up to 
this court. The provisions of the law have conferred upon this court 
no jurisdiction to give such a judgment, and this court must, therefore, 
overrule the motion made.” 42, 572. Ward v. Thomas. 1865. 

Appellate Jurisdiction—Meaning of this Clause Regarded as Settled. 

—McFarland, J., reviewed and approved the several opinions on this 
subject above contained, and said: “These authorities settle the mean¬ 
ing of the clause iu question in the Constitution of 1834—that the 
jurisdiction of this court is appellate only, with such other powers 
as, though not strictly appellate, are yet absolutely necessary iu carry¬ 
ing out and completing the jurisdiction given. The convention of 
1870 adopted in the new Constitution the precise lauguage iu question, 
without alteration iu this respect, and we must suppose they did so iu 
view of the construction given to it by the courts, as has been shown. 
The meaning of this clause must, therefore, be taken as settled.” 59. 
214. Memphis v. Halsey. 1873. 

Incidental Jurisdiction.—NICHOLSON, J., held: “The jurisdiction of 
this court is appellate only, with such incidental jurisdiction as is neces¬ 
sary to consummate its decrees and judgments.” 65, 96. Chestnut v. 
McBride. 1873. 

“Appellate Only” Emphatic Words—Doctrine Reaffirmed. — COOPER, 
j.: “The Constitution of 1834 contained the same provision, which 
came before our predecessors for construction. They held that the 
emphatic words of the clause were the words ‘appellate only,’ and that 
the latter part of the sentence should be limited to such powers as, 

» T. <fc S., same sections; M. & V., 6848 et seq. ' 


420 


TENNESSEE CONSTITUTIONAL LAW. 


though not appellate, were absolutely necessary to the exercise of the 
appellate jurisdiction given. Miller v. Coulee, The State v. Bank. By 
a well-known rule of constitutional and statutory construction, the pro¬ 
vision thus construed must be held to have been brought forward into 
the new Constitution with the meaning judicially put upon it. And so 
it has in effect been decided. Newman v; Justices, McIntosh v. Paul, 
7 Lea, 45. The jurisdiction of the court has been made appellate only, 
as was well said in Miller v. Conlee, because it was intended that the 
litigant in any judicial proceeding should have the benefit of the decision 
of at least two distinct tribunals, one created by the legislature, and 
the other by the Constitution. This court has considered it to be its 
duty to effectuate the constitutional intent, even when the case might 
well fall under the latter part of the clause of the Constitution in ques¬ 
tion as construed.” 80, 732. Dodds v. Duncan. 1884. 

Appeals from Division Where Tried. — SHACKLEFORD, J., held: “That 
in agreed cases, an appeal may be taken from the decision of the 
inferior court, and that the Supreme court, sitting at Knoxville to try 
cases for the eastern division, can not take jurisdiction of a cause 
originating in the western ’division.” 43, 249. Memphis Freight Co. v. 
Mayor etc. of Memphis. 1866. 

Meaning of Constitutional Provisions, Sections 1 and 2 — Mode of 
Exercising Jurisdiction Regulated by Legislature — Exceptions. — 
Freeman, J.: “By Constitution of State, art. 6, sec. 2, it is provided 
that the ‘jurisdiction of this court shall be appellate only, under such 
restrictions and regulations as may, from time to time, be prescribed by 
law;’ and, by sec. 1 of said article, this court is provided for as the 
Supreme court, and other courts that the legislature may, from time to 
time, ordain and establish, are denominated inferior courts. We think 
the fair and legitimate meaning of these last provisions is, that this 
court is the supreme tribunal of the State, and other courts inferior in 
the sense of being subject in their action to the jurisdictional control of 
this court, as the appellate tribunal, over all such judgments and decrees 
as they may render affecting the life, liberty, property or rights of the 
citizens of the State. The particular mode in which this jurisdiction 
may be exercised, whether by appeal in the nature of a writ of error, 
or by writ of error and supersedeas , is a matter of regulation by the 
legislature; and such restrictions and regulations may be enacted by 
the legislature as may be deemed proper, so as not to defeat the ulti¬ 
mate control of this court, as the Supreme court of the State, over the 
inferior courts ordained by the legislature. Perhaps there may be 
exceptions to the generality of the rule above stated, as in case of writ 
of habeas corpus , and it may be in some other cases —but if so, they 


1 T. & S., 4496; M. & V., 5246. 



JURISDICTION OF SUPREME COURT. 


421 


are but exceptions growing out of the particular nature of the case, and 
do not in any way affect the soundness of the rule itself.” 52, 704. 
1 Hundhausen v. Insurance Co. et al. 1871. 

Agreed Case.— Cooper, J., held: “An agreed case cannot be brought 
into this court for discussion until after judgment by the inferior court .” 1 
80, 657. Aldrich v. Pickard. 1883. 

Appeal in Forma Pauperis to Supreme Court. — COOK, J., held : “Tak¬ 
ing the oath prescribed for poor persons in cases of appeal, and tender¬ 
ing it to the clerk, though he refuse to accept it, is a substantial com¬ 
pliance with the requirements of the law, and the appeal is thereby 
perfected. The Act of the legislature of March 2, 1885, chapter 27, is 
an attempt to confer original jurisdiction upon the Supreme court, and 
is therefore unconstitutional and void.” In delivering the opinion he 
said: “The section of the act in question which requires this court to 
try an issue in pais , made for the first time in this court, upon the origi¬ 
nal depositions taken at will by the parties, and filed as evidence in 
this court, and which proceedings constitute no part of the record of 
this court below, is, as we think, under the authority of the above-cited 
cases, too clearly a requirement of the exercise of original jurisdic¬ 
tion to admit of further discussion. It is insisted, however, that this is 
saved by the latter part of said clause of the Constitution: ‘It (this 
court) may possess such other jurisdiction as is now conferred by law 
on the present Supreme court/ And it is said the Act of 1821, ch. 22, 
sec. 5 (Code, sec. 3 3149, T. & S.), which was in force at the time of the 
adoption of the present Constitution, as well as that of 1834, conferred 
the jurisdiction contended for upon this court. . . . This provision 

appears in the chapter of the Code making provk;'ons for costs on the 
institution of civil actions, and applies only to the inferior courts, and 
the Act of 1821, from which it is taken, was merely providing for the 
prosecution of suits in forma pauperis, when the parties instituting such 
suits were unable, by reason of their poverty, to bear the expenses of 
the suit, and which, by numerous decisions of this court, is held to apply 
to appeals which may be taken in the lower courts in lieu of the bonds 
which otherwise are required to be there executed.” 84, 124. The 
State for use etc. v. Gannaway et al. 1885. 

Mandamus Against Circuit Judges. 

Mandamus—Power of the Supreme Court to Issue Against Circuit 

Judges. — Shackleford, J.: “This is the first application, so far as we 
have been able to learn from the reports of the decisions in this court, 
in the judicial history of the State, of an application to this court to 
award a mandamus against a circuit judge to compel him to appear and 


1 See same case, art. 6, see. 11. 


*T. & S., 1497; M. A V., 5247, 


»M.4V, 3195. 



422 


TENNESSEE CONSTITUTIONAL LAW. 


show cause why he should not sign a bill of exceptions taken in the 
trial of a cause before him. It is a question of great importance to the 
citizens. If this court has not the jurisdiction to grant the writ, there 
should be some legislative action, for without it the citizens or suitors 
would be without remedy, as we have no statute authorizing a man- 
damns against a circuit judge in such cases. Section 2968 of the Code 
provides: ‘The facts of the case being fairly stated in the bill of excep¬ 
tions, the judge shall sign the same, which, thereupon, becomes a part 
of the record of the cause.’ 

“A mandamus is defined to be, by the common law writers of England, 
‘a summons, issuing in the king’s name, from the court of king’s bench, 
and directed to any person, corporation, or inferior court of jurisdiction 
within the king’s dominions, requiring them to do some particular thing: 
therein specified, which pertains to their office and duty, and which the 
court of king’s bencn has previously determined, or at least supposes to 
be consonant with right and justice.’ Blackstone adds: ‘ It issues to the 
judges of any inferior court, commanding them to do justice according 
to the powers of their office, whenever the same is delayed.’ 3 Black- 
stone’s Commentaries, 110; 5 Pet., 191. Chief Justice Marshall, in the 
last case referred to, says: ‘We think it apparent that this definition, 
and this description to which it is applicable by the court of king’s 
bench, as supervising all inferior tribunals, extends to the case of the 
refusal by an inferior court to sign a bill of exceptions, when it is an act 
that pertains to their office and duty. Though this right was never 
exercised by the court of king’s bench in issuing a mandamus , yet the 
power clearly existed.’ This Supreme court was established by the Con¬ 
stitution in 1834, and it is provided in the Constitution ‘it shall possess 
such appellate and other jurisdiction as is now conferred by law on the 
Supreme court, under such restrictions and regulations as may, from 
time to time, be prescribed by law.’ Previous to the formation of this 
court by the Constitution, the Supreme court was created by legislative 
will, and, in 1809, by an act of the legislature, the Supreme court was 
organized with appellate jurisdiction. 

“The provision of the Constitution of the State in organizing this 
court is very similar in language to the Constitution of the United States 
under which the Supreme court is established. In the cause referred, 
of ex parte Crane, in which this provision of the Constitution of the 
United States was under consideration, the court says: ‘A mandamus to 
an inferior court of the United States is in the nature of an appellate 
jurisdiction.’ The case now under consideration is to compel a circuit 
judge to sigu a bill of exceptions to make it a part of the record of the 
case of which we have now the jurisdiction. The object and purpose of 
the writ is to carry out and perfect the right of the party appealing. 
The law authorizes the appeal. Upon the execution of the bond and 


JURISDICTION OF SUPREME COURT. 


423 


filing of the record this court acquired jurisdiction. Upou it appearing 
the circuit judge refused to do that which he is compelled to do by law, 
this court, upon principle, must have the power, under its appellate 
jurisdiction, to compel the circuit judge to appear and show cause why 
he has not performed an act he is bound by law to do. The act to be 
performed is a ministerial one, not judicial. Without the exercise of 
the appellate jurisdiction there is no remedy. In criminal cases the 
liberty of the citizen would be in jeopardy, and the rights of the prop¬ 
erty would be under the control of the circuit judges if they refused to 
sign bills of exceptions, from time to time, that might be presented on 
the trial of the cause, and to which the suitors by law were rightfully 
entitled to make a part of the record. 

“ As much as we are disposed not to exercise a jurisdiction where a 
doubt exists, yet where the rights or liberty of the citizen would be 
placed in jeopardy, we think it our duty to take jurisdiction. In a case 
that came before the Supreme court in 18IG, of which there is but a 
short note, on a petition for a mandamus , to compel the circuit judge 
to proceed to the trial of a cause, the court held: ‘They had no original 
jurisdiction, and they would not take cognizance of any matter, unless 
it relates to an appeal , which , if prayed and attempted to be defeated in 
any way , this court would aid by any ivrit ichich tvould overcome and 
remove the injury 5 Haywood, 59. In the case of Miller v. Rogers, 9 
Humph., 236, Turley, J., in commenting upon the facts, where it was 
urged the judge had refused to incorporate into a bill of exceptions 
parts of the evidence, said: ‘We must examine the facts here, as con¬ 
tained in the bill of exceptions, and not upon a suppositious conception 
of what they might have been if the bill of exceptions had been drawn 
up as it should have been. If a judge refuses to sign a bill of excep¬ 
tions, it is no cause of error; the only redress is by mandamus. In a 
case properly made out a fortiori is this so when he will sign an imper¬ 
fect bill of exceptions, and none other/ 

“Judge Caruthers, in his ‘History of a Lawsuit,’ 259, in commenting 
on this principle, says: ‘If the judge refuses to sign it, the remedy of 
the party is to apply to the Supreme court for a mandamus . So, if he 
refuses to insert in it what the party contends was really the fact, his 
only remedy is, a mandamus to compel him.’ Though this has not the 
force of a judicial decision, yet the large experience of the author with 
the jurisprudence of the State, and his high character as a jurist, gives 
weight to his opinion upon this question. The right has been frequently 
exercised by the Supreme courts of other States. In New York, the 
question was fully argued before the Supreme court of that State, aud 
the writ was awarded. 6 Johnson’s Rep., 279. In 2 Seamman’s Ill. 
Rep., 189, a case came before that court. The question was well con¬ 
sidered, the authorities were reviewed, and upou mature deliberation, 


t 


424 


TENNESSEE CONSTITUTIONAL LAW. 


as appears from the great number of authorities cited, the writ was 
awarded. But, not having the Constitution of those States before us, 
we can not say whether the courts had only appellate jurisdiction. We 
are of opinion, under the appellate powers of this court, it has the right 
to award the writ of mandamus .” 43, 259. The State for use etc. v. 

Hall et al. 1866. 

Mandamus Against Circuit Judge—When it Will be Refused—Right 
to Award Original Process. — SNEED, J., held: “The power ot this Court 
to award original process is limited to those cases where its exertion is 
required to carry out its appellate jurisdiction. ... A mandamus 
to compel an inferior judge to proceed to the trial of a cause disallowed^ 
because, if granted, such action would involve the exercise of original 
jurisdiction.” 65, 6. The State ex rel. Kain v. Hall. 1873. 

Authority of Supreme Court to Order Clerk of Inferior Court to Exe¬ 
cute Order of Sale—Judge and Clerk of Inferior Court—Art. 6, Sec. 3.— 
The question considered here was the constitutionality of the Act of 
March 24, 1879, providing that in all cases where land is decreed for 
sale by any inferior court and an appeal taken and the judgment below 
affirmed, the case shall be sent back to the lower court and the clerk of 
said inferior court shall be ordered by the Supreme court to execute the 
order of sale and report at the nest term of the inferior court. L. D. 
McKisick, Sp. J.: “Prior to the passage of the act in question it was 
the ordinary course and practice of this court, iu its discretion, either 
to remand the cause to the inferior court to be proceeded in, in con¬ 
formity with the opinion and decree of this court, or to execute the 
decree of affirmance through the clerk of this court. . . . When 

the Constitution of 1870 was adopted'the extent of the jurisdiction of 
this court had been defined by a number of acts of the legislature, 
which had been carried into the Code of 1858, and was to be found in 
sections l 4495 to 4502 inclusive, aud the practice in this court had been 
prescribed and regulated by various acts carried into the Code at sections 
4504 to 4516 inclusive, and iu various sections to be found iu the chap¬ 
ter entitled ‘Proceedings for the correction of errors.’ Whatever juris¬ 
diction, if any, those sections conferred upon the Supreme court as it 
existed when the Constitution of 1870 was adopted, this court is 
expressly authorized 2 to exercise under the latter clause of the second 
section of article 6. But it is conceded that that section does not 
authorize the legislature to confer any new original jurisdiction upon 
this court. It can only prescribe restrictions aud regulations for the 
exercise of its appellate jurisdiction; and the question is, whether the 
act under consideration merely prescribes a mode for the exercise of 
that appellate jurisdiction in the class of cases to which it applies, or 


M. & V., 5245 et seq- 


*Art. 6. see. 3. 


JURISDICTION OF SUPREME COURT. 


425 


whether it goes farther and attempts to enlarge or abridge that juris¬ 
diction. . . . 

“It appears to be plainly the intention and meaning of this act to 
direct this court to order the clerk of the inferior court to execute a 
decree of this court, and not the decree of the court of which he is 
clerk. Manifestly this court has no jurisdiction to do anything of the 
kind. As we have seen by the express provisions of the Constitution, 
the office of clerk of the various courts is created by the Constitu¬ 
tion, each court has its own clerk, and has jurisdiction over that clerk; 
but we have no provision in the Constitution, nor in the statute law, 
which gives jurisdiction to any court over the clerk of auother court. 
Such a law would be an anomaly, calculated to lead to inextricable con¬ 
fusion in the administration of justice. While this court has no juris¬ 
diction over the clerks of inferior courts, simply as clerks, it has juris¬ 
diction over the inferior courts and the judges thereof, in all cases 
wherein it has appellate jurisdiction of the parties and of the subject 
matter, and can compel the inferior court or the judge thereof to obey 
its mandates.” 

The opinious in Perkins v. Scales and Mabry v. Baxter are cited and 
discussed and the judge continues: “The foregoing decisions do not in 
any way question the power of the legislature to prescribe such rules 
as may be necessary to carry out the provisions of sec. 2 of art. 6 of 
the Constitution. That the legislature has the power to prescribe such 
rules as may be necessary to enable this court to exercise its appellate 
jurisdiction is not questioned, but after that jurisdiction has once right¬ 
fully attached, under such rules as may be prescribed by law, this court 
as a co-ordinate branch of the State government, under the Constitu¬ 
tion, has power to make and enforce its decrees without any directions 
from the legislature. The conclusion is, that notwithstanding the Act 
of March 26, 1879, this court may, in its discretion, allow the decrees 
submitted by the complaiuants to be entered, the parties interested so 
desiring, and there being no special cause shown for remanding the 
causes, the motions are allowed, and the decrees will be entered accord¬ 
ingly.” 70, 606. Northern v. Barnes , The State v. Williams. 1879. 

Court of Chancery Appeals — Decree May be Signed by Only Two 
Judges. —Wilkes, J., held: “A decree of the court of chancery appeals 
which recites a hearing and concurrence by the full court, is not erro¬ 
neous and reversible because the opinion and finding of facts upon 
which the decree is based was signed by only two judges. Nothing in 
the Constitution or 1 statutes requires the signing of the opinion or the 
concurrence of more than a majority therein.” 95, 598. Austin v 
Harbin. 1895. 


1 Act* 1895, ch. 7« 


TENNESSEE CONSTITUTIONAL LAW. 


42 fi 


Art. 6, Sec. 3. The judges of the Supreme court shall be 
elected by the qualified voters of the State. The legislature 
shall have power to prescribe such rules as may be necessary to 
carry out the provisions of section 2 of this article. Every 
judge of the Supreme court shall be thirty-five years of age, and 
shall, before his election, have been a resident of the State for 
five years. His term of service shall be eight years. 1 

[ Amendment of 1853, See. 3. “ The judges of the Supreme court shall 
be elected by the qualified voters of the State at large, and the judges of such 
inferior courts as the legislature may establish shall be elected by the quali¬ 
fied voters residing within the bounds of any district or circuit to which such 
inferior judge or judges, either of law or equity, may be assigned, by ballot, 
in the same manner that members of the general assembly are elected, 
t'ourts may be established to be holden by justices of the peace. Judges of 
the Supreme court shall be thirty-five years of age. and shall be elected for the 
term of eight years.”] 

[Const. 1834, Art. 6, Sec. 3: “ The general assembly shall, by joint vote of 
both houses, appoint judges of the several courts of law and equity, but courts 
may be established to be holden by justices of the peace. Judges of the 
Supreme court shall be thirty-five years of age and shall be elected for the 
term of twelve years.”] 

[Const. 17%, Art. 5, See. 2: “ The general assembly shall, by joint ballot of 
both houses, appoint judges of the several courts of law and equity; also an 
attorney or attorneys for the State, who shall hold their respective offices 
during good behavior.” 2 ] 


1 See L. & N. R. R. v. Davidson County, art. 2, sec. 29, p. 335; The State ex rel. e. Maloney r 
art. 7, sec. 5; Northern v. Barnes, art. 6. sec. 2, p. 424; also 74. G38. 

2 In the case of Smith v. Normant, 13, 271, decided in 1833, Catron. J.. held: “I’nder the 
Constitution of 179G, the Act of 1827,37, authorizing the governor to appoint a special judge, in 
case the sickness or bodily infirmity of any circuit judge should render him incompetent to sit 
without danger to his health or life, is unconstitutional and void. See The State v. Simpson, 5- 
Yer., 365; Brogan v. Savage, 5 Sneed, 694 ; Venable & Co. v. Curd, 2 Head, 586, all citing this case, 
the last strongly intimating that it was erroneously decided by overlooking the doctrine applicable 
to acts of officers d( facto. The Constitution of 1834 made, and the present Constitution of 1870,. 
art. 6, sec. 11, makes provision for the contingency.” See also 14 . 529. 



JUDGES AND JUDHTAL ACTS. 


4l>7 


JUDGES AND JUDICIAL ACTS. 


PAGE. 

Special Judge May be Selected by Agreement 

of Parlies—When. 427 

Official Acts of special Judgei* ('an Not be 
Inquired Into by Parties Affected by 
Them.;. 428 


page. 

County Judge an ‘Inferior" Judge—County 
Judgeship Not a “County Office ”— 

Vacancy. How Filled. 429 

Removal of County Judge—This Clause 

Construed. 4:12 


Akt. 6, Sec. 4. The judges of the Circuit and Chancery 
courts, and of other inferior courts, shall be elected by the qual¬ 
ified voters of the district or circuit to which they are to be 
assigned. Every judge of such court shall be thirty years of age, 
and shall, before his election, have been a resident of the State 
five years, and of the circuit or district one year. His term of 
service shall be eight years. 1 

[Amendment of 1853: Sec. 4: ‘‘The judges of such inferior courts as the 
legislature may establish shall be thirty years of age, and shall be elected for 
the term of eight years." Const. 1834, Art. 6, Sec. 4.] 

[Const. 1790. Art. 5, Sec. 4: "The judges of the superior courts shall be 
justices of oyer and terminerand general jail delivery throughout theState.’’] 

Special Judge May Be Selected by Agreement of Parties when Reg¬ 
ular Judge is Incompetent. - -Judge Turley, being incompeteut to try this 
cause, the attorneys by agreement selected F. M. Fulkerson, Esq., to 
preside, under the provision of the ’Act of 1858, cli. 90. Caruthers, J.: 
“ It is argued that this act is unconstitutional, because a .judge can not 
be appointed but in the mode therein prescribed; that it is in contraven¬ 
tion of this provision for the parties to make a judge by agreement. 
But this act does not authorize the parties to make a judge, but only a 
person ‘to act as judge,’ in their particular case, ii*which the judge of 
the circuit is incompetent. If the provision had been that in such 
cases the parties might, by agreement, select some attorney to decide 
their dispute or to preside over twelve other men who should decide 
upon the facts, under his instructions as to the law, could there be any 
objection? Can it make any difference in the case whether he is denom¬ 
inated umpire, arbitrator, or judge? But if there was any thing in the 
name, he is not so entitled in the law, but only that he is to ‘act as 
judge.’ That is, the powers that a judge would have and exercise in 
the particular case, are conferred, by agreement of the parties, upon 
the person thus selected. It can make no difference that the regular 
machinery of the court is to be used in the case, under the direction of 
such person. It is all by agreement; there is no compulsion. It is 
confined to a special case, in which the regular judge can not legally 
preside. 

“It can not affect the question that the case is to be tried and decided 
in the court house, in term time, with a jury, and a clerk and sheriff. 
He is not a judge, nor are gentlemen appointed to fill the place of one 


1 See State etc. v. tiaines, art. 6, sec. 1. p. 406; also 70. 177. Acts of 1879, eli. 180, and 80. 350. 
a rode 1858, 3921: T. A S.. 3921 : M. A V., 4682. 







428 


TENNESSEE CONSTITUTIONAL LAW. 


or more members of this court, who are incompetent, judges j but they 
are, by the law, clothed with the same powers for the peculiar cases. 
They are to ‘act as judges;’ they are to have the power and authority 
of judges in the cases to be tried before them. Under this act the plain 
and easy mode of correcting errors may be resorted to which applies to 
ordinary cases. In this it is better for the parties than arbitrations. 
The case of 1 Smith v. Norment is very different from this. There the 
Act of 1827, ch. 37, was declared unconstitutional. The act gave the 
governor power to appoint a special judge to exercise all the powers of 
a circuit judge, in case of his sickness, until he should recover and 
resume his functions. Even in that case Judge Green dissented, and 
held the act to be constitutional. Yet we hold the case to be authority, 
and still it does not control this case. They are entirely dissimilar. The 
selection of the attorney to preside in this case was made by the attor¬ 
neys of the parties, or at least the written agreement is signed by them. 
We see no objection to this. They were employed to conduct the suit, 
and might well be considered better judges than their clients of the 
qualifications of lawyers. We do not perceive that the evil consequences 
to the judiciary, depicted in argument, will arise from this act. But 
whether such may be the case or not, believing the act to be within the 
legislative power, we are bound to give it effect. The act is confined to 
cases where the regular judge is incompetent, and to that we limit our 
opinion.” 37, 693. Brogan v. Savage et al. 1858. 

Special Judge—Official Acts Can Not be Inquired Into by Parties 
Affected by Them.—C arutheks, J.: “The plaintiff in error was pre¬ 
sented for unlawful gaming, at the October term of the Circuit court of 
DeKalb for 1858. That term of the court was held by John P. Murry, 
who had been appointed by the governor to fill the vacancy occasioned 
by the death of Hon. John L. Goodall, until the election was made by 
the people. At the February term, 1859, upon his arraignment, he filed 
a plea in abatement that the said John P. Murry, who presided at the 
term of the court at which he was presented under the pro tern, appoint¬ 
ment of the governor, was under thirty years of age, and therefore not 
competent to exercise the functions of judge of the Circuit courts in this 
State. A demurrer to this plea was sustained by the court, and that is 
the error assigned for reversal. 

“It is true the Constitution requires a circuit judge to be thirty 
years of age, but if the appointing power confers the office upon one 
who is not competent, by that test the question is as to the effect upon 
his judgments while he occupies and acts in the position. We think it 
is well settled that the judgment and official acts of an officer de facto 
are binding and valid, and the competency of the functionary acting 


Note to art. 6, sec. 3. 



JUDGES AND JUDICIAL ACTS. 


429 


under commission can not be inquired into by parties affected by them. 
This principle was adopted through necessity to save the rights of per¬ 
sons having an interest in them, and to prevent a failure of justice. 
The doctrine is referred to and recognized in Moore v. The State, 5 
Sneed, 514, and an unreported case here at the last term at Jackson yet 
in manuscript. This renders it unnecessary, if not improper, to enter 
again into the argument and citation of authorities. The governor’s 
commission renders the functionary competent, and clothes him with 
powers of the office so far as his official acts are brought in question by 
the parties concerned in or affected by them. He may be removed from 
the office, and his powers terminated by the proper proceedings, but 
until that is done his acts are binding.” 40, 091. Blackburn v. The 
State. 1859. 

County Judge is an Inferior Judge—County Judgeship Not a “County 
Office”—Vacancy—How Filled—Art. 11, Secs. 1 and 17—Art. 7, Sec. 1. 
—In August, 1871, a vacancy occurred in the office of county judge of 
Davidson county, to till which the governor appointed the relator, and 
the County court elected the defendant. Who was entitled to the office? 
After reviewing the various statutes providing for the filling of vacan¬ 
cies, before the adoption of the Constitution of 1870, McFarland, J., 
sums up: “We conclude, therefore, upon the construction of the ’stat¬ 
utes before referred to, that upon the happening of a vacancy in the 
office of county judge it was the duty of the governor to order an elec¬ 
tion to fill the vacancy, and in the meantime to appoint some suitable 
person to fill the office until the election was held. . . . The impor¬ 

tant change in this respect, made by the new Constitution, is that it 
abolished special elections for the filling of vacancies. The vacancy can 
not be filled by an election until the next licensed election for civil 
officers, and the result is that where an appointment to fill such a 
vacancy is made, the appointee is to hold the office until the next bien¬ 
nial election for civil officers, so that his length of time to remain in 
office is greatly extended. Section 1 of article 11 of the Constitution 
of 1870 provides, ‘that all laws and ordinances now in force and use in 
this State, not inconsistent with this Constitution, shall continue in force 
and use until they shall expire, or be altered or repealed by the legis¬ 
lature;’ so we think it clear that if the power existed in the governor to 
make this appointment previous to the adoption of the new Constitu¬ 
tion, it still remained unless taken away by the last section—sec. 17, 
art. 11, in these words: ‘No county office created by the legislature 
shall be filled otherwise than by the people or the county court.’ . . . 
The Constitution, art. 7, sec. 1, designates certain county officers and 
provides for their election and the filling of vacancies in their offices; 


M. <fe V., 35:5. 



430 


TKXX ESS K E 00NSTITUTIONA L LA VV. 


these are the sheriff, trustee, coroner, register. These are clearly 
county offices proper. Their term of office, except in the case of regis¬ 
ter, is two years; the register’s term is four years. They are not 
required to be commissioned by the governor; their duties are minis¬ 
terial, and in all cases confined to their county. 

“Now, does a county judge fall more clearly within this class than the 
judiciary? He is elected by the people of the county, and in general 
his powers and duties are confined to his county, though he may inter¬ 
change with other county judges and hold court in any of the counties 
for which a county judge is provided by law. He is the general finan¬ 
cial agent and accounting officer of the county, and in this respect his 
duties are those of a county officer; but these are not all of his duties, 
and they do not seem to have any very close connection with his judicial 
powers in hearing and determining causes in court, but are rather 
powers and duties added to his office of judge. On the other hand, as 
we have seen, he is required to be learned in the law; he is to be com¬ 
missioned by the governor and qualified as other judges, and he holds 
his office for eight years, as they do. His court is one of record and 
exercises, in many cases, concurrent jurisdiction with the Circuit and 
Chancery courts, and from the judgments and decrees in these cases 
appeals and writs of error lie to the Supreme court. In other cases the 
jurisdiction of the court is original and exclusive; the judgments and 
decrees of the County court, held by the county judge, in causes over 
which it has jurisdiction, have all the force and effect of the judgments 
or decrees of any other court, and while in one sense he may be a county 
officer, yet we can not resist the conclusion that he is nevertheless a 
judge. 

“So we do not think that county judges are so clearly included 
within the terms of sec. 17, art. 11, as above quoted, as to amount to 
an absolute prohibition upon the power of appointment, unless this 
view be aided by some other provision. Or, in other words, that if the 
power of appointment can be shown to have belonged to the governor 
previously thereto, then the provision in question does not take it away 
in such plain and positive terms as to leave no doubt of its meaning. 
It would seem to be very clear that as the election of county officers 
then in existence had already been provided for by law, this clause of 
the Constitution was intended to have more special reference to offices 
afterwards to be created by the legislature, although it will include 
within its meaning‘all county offices created by the legislature/ and 
must be so coustrued. It is evident, however, that in the case of a 
county office hereafter created" by the legislature, that body must deter¬ 
mine how such office is to be filled, whether by the people or the County 
court; for although this clause of the - Constitution does say that the 
office shall be filled otherwise than by the people or the County court, 


JUDGES AND JUDICIAL ACTS. 


431 

yet it does not say in which one of the two modes the office is to be 
tilled, and it is clear that in such a case there must of necessity be leg¬ 
islation upon the question before this provision could be fully carried 
into effect, and, in some cases, a serious difficulty might arise as to 
whether the power was to be exercised by the County court held by the 
judge, or the Quarterly court held by the justices; the clause only says 
the County court. 

“ It is true that if the provision iu question was a clear prohibition 
upon the exercise of the power of the governor, it might have the effect 
to prevent the exercise of the power upon his part, without vesting the 
power elsewhere. It might have been said that the governor should 
not exercise the power, without saying who should. . . . Sec. 4, art. 

6, provides that the judges of the Circuit and Chancery courts and of 
other inferior courts shall be elected by the qualified voters of the dis¬ 
trict or circuit to which they are to be assigned, and, as we have seen 
that, even if it be conceded that for some purposes a county judge is a 
-county officer, he is at the same time a judge of an inferior court, we 
think he comes clearly within the meaning of the clause last quoted, 
and the legislature would not have the power to provide for the election 
-of a county judge otherwise than by the people. 

“According to the argument for the defendant, sec. 17, art. 11, applies 
iu most cases not only to filling the office in the first instance, but also 
as to filling temporary vacancies. No distinction in this respect is made 
in this clause, although it is clear that the two powers must be differ¬ 
ent; for under another clause iu the Constitution, no special election 
•can be held, and so no such vacancy can be filled by the people. Yet, 
this clause makes no distinction between filling the office and filling the 
vacancy. Assume, for argument, that sec. 17, art. 11, may include a 
county judge—does it prohibit a temporary appointment by the governor 
until the next election? It says the office shall not be filled otherwise 
than by the people or the County court. Other portions of the Consti¬ 
tution provide that the judge of the Circuit and other courts shall be 
-elected by the people. This is certainly equivalent to saying that the 
office shall not be filled otherwise thau by the people, and the Constitu¬ 
tion has no provision for the filling of a vacancy in the office of a judge 
by an appointment of the governor, but it does contain a provision, that 
the election of all officers, aud the filling of vacancies not otherwise 
directed or provided for by this Constitution, shall be made iu such 
mauner as the legislature may direct, and under this power the legisla¬ 
ture directs the appointment to be made by the governor, aud this 
power of appointment as to other judges has never been doubted. The 
provision that the office shall only be tilled by the voters, has not been 
supposed to take away the power of the governor to fill a temporary 
vacancy. Now, the Constitution has not otherwise directed or provided 


432 


TENNESSEE CONSTITUTIONAL LAW. 


for the manner of filling a vacancy in the office of county judge, and we 
think the power to provide for filling the vacancy must, under the Con¬ 
stitution vest with the legislature, and as the law stood in August, 1871 r 
that power was vested in the governor.” 54, 488. The State ex reL 
Smiley v. Glenn . 1872. 

County Judge—Removal of—This Clause Construed—Former Opinions 
Discussed.— By the Act of 1885, p. 128, the legislature created the office 
of county judge of Marshall county. Lenoard was appointed, etc., and 
was elected in August, 1886. This bill was filed on relation of D. C. Orr 
to restrain him from acting as judge ou the ground that the act, in so 
far as it authorized the appointment of judge, had been repealed by the 
Act of 1887, p. 163, and the powers and duties of the office devolved 
upon him (Orr) as chairman of the County court. Snodgrass, J.: “The 
question is, can the legislature subsequently, and within the term, 
deprive him of the office by devolving its powers and duties upon 
another? The Act of 1887 did not and did not attempt to abolish or 
diminish the powers and duties appertaining to the office. It simply 
repealed so much of the act as applied to Marshall county (another 
county having had a similar change made in its court system by the 
same act), and undertook to re-establish the office of chairman of the 
County court after the first Monday in April, 1887, and to vest in this 
officer ‘all the rights, privileges, jurisdiction, duties, and powers’ per¬ 
taining to the office as established and exercised by the county judge. 

“If this legislation had merely named the defendant, and by name 
and title removed him from the position and given it to another, it could 
not have more directly accomplished the purpose actually effected, if 
it be valid. The Constitution, in fixing the terms of the judges of 
inferior courts, elected by the people, at eight years, intended not only 
to make the judiciary independent, and thereby secure to the people the 
corresponding consequent advantages of courts free from interference 
and control, and removed from all necessity of being subservient to any 
power in the State, but intended also to prevent constant and frequent 
experimenting with court systems, thau which nothing could be more 
injurious or vexatious to the public. It was intended when the legis¬ 
lature established an inferior court, that it should exist such a length of 
time as would give opportunity for mature observation and appreciation 
of its benefits or disadvantages, and that the extent of its duration 
might discourage such changes as were not the result of most mature 
consideration. Realizing that 'a change, if made so as to constitute an 
inferior court, would fix that court in the system for eight years, a legis¬ 
lature would properly consider and maturely settle the question as to 
the propriety and desirability of such change or addition to our system; 
and conscious of the impropriety and the hazard of leaving the judicial 
department of the government at the mercy and whim of each recurring 


JUDGES AND JUDICIAL ACTS. 


433 


legislature, itself elected for but two years, the framers of the Constitu¬ 
tion Wisely guarded against these evils by the section referred to. 
Properly construed and enforced, it is effectual for that purpose. Disre¬ 
garded or impaired by such interpretation as leaves it to exist in form 
without force or substance, and we have all the evils and confusion of 
insecure, changing and dependent courts; frequent and constant experi¬ 
menting with systems provided in haste, tried in doubt, and abolished 
before their merits or demerits are understood. It would be a mortify¬ 
ing reflection that our organic lawmakers intended any such result in 
their avowed effort to make a government of three distinct and inde¬ 
pendent departments; and still more humiliating if we were drawn to 
the conclusion that while they did not intend it, they had been so weak 
or inapt in phraseology adopted as to have accomplished it. Neither 
the intent nor the language of the Constitution employed to express it 
fortunately bears any such construction. When a court, whose judge is 
elected by the people of one or more counties—in district or circuit— 
is constituted by the legislature, and an election had, and the officer 
commissioned and qualified, it is not in the power of the legislature to 
take from him the powers and emoluments of office during the term of 
eight years by devolving these intact upon another, or otherwise. The 
court so constituted, and judge elected in this instance, was under the 
authority to establish inferior courts already quoted.” 

Referring to State ex rel. Coleman v. Campbell (MS.) and *State ex rel. 
v. Gaines, Judge Snodgrass said: “Without desiring to be understood 
as assenting to the correctness of the conclusions reached in those 
cases (to the reasoning of which we do not subscribe), and which con¬ 
clusions, we may remark in passing, were reached by a divided court, 
and against the weight of many opinions in other States, it is sufficient 
to say that the case here presents no such question as that determined 
there.” 86, 487. The State v. Lenoard. 1888. 

*Art. 6, sec. 1, p. 406. 


28 



434 


TENNESSEE CONSTITUTIONAL LAW. 


ATTORNEYS GENERAL. 


Art. 0, Sec. 5. An attorney general and reporter for the 
State shall be appointed by the judges of the Supreme court, 
and shall hold his office for a term of eight years. An attorney 
for the State for any circuit or district for which a judge having 
criminal jurisdiction shall be provided by law, shall be elected 
by the qualified voters of such circuit or district, and shall hold 
his office for a term of eight years, and shall have been a resi¬ 
dent of the State five years, and of the circuit or district one 
year. In all cases where the attorney for any district fails or 
refuses to attend and prosecute according to law, the court shall 
have power to appoint an attorney pro tempore. 1 

[Amendment of 1853, Art. 6, Sec. 5: ‘ An attorney general for the State 
shall be elected by the qualified voters of the State at large, and the attorney 
for the State for any circuit or district to which a judge of an inferior court 
may be assigned, shall be elected by the qualified voters within the bounds 
of such district or circuit in the same manner that members of the general 
assembly are elected; all said attorneys, both for the State and circuit district, 
shall hold their office for the term of six years. In all cases where the attor¬ 
ney for any district fails or refuses to attend and prosecute according to law, 
the court shall have power to appoint an attorney pro tempore. The legisla¬ 
ture shall appoint a day for holding the election of judges and attorney 
general separate and apart from the day already prescribed or hereafter to be 
prescribed by the legislature for holding the elections for State and county 
officers.”] 

[Const. 1334, Art. 6, Sec. 5: “The legislature shall elect attorneys for 
the State by a joint rote of both houses of the general assembly, who shall 
hold their offices for the term of six years. In all cases where an attorney 
for any district fails or refuses to attend and prosecute according to law, the 
court shall have power to appoint an attorney pro tempore."] 


Power of Legislature to Reduce Fees of Attorney General and Other 
Officers. — Green, J.: “The plaintiff in error was iudicted for gaming in 
July, 1841, and was tried and convicted in March, 1842. The clerk taxed 
a fee of five dollars to the attorney general. At the return term the 
court, on motion, ordered the taxation of costs to be corrected, and teu 
dollars to be taxed for the attorney general’s fee. From this judgment 
the plaintiff in error appealed to this court. Previously to the passage 
of the Act of 1841-2, ch. 35, the sum of teu dollars was the fee allowed 
by law to the attorney general in all convictions for gaming, but by that 
act the fee was reduced to five dollars in all cases for gaming which 
were not made felony by statute. This act was passed the 11th of Jan¬ 
uary, 1842, after the indictment was found, and before the conviction 
and judgmeut. It provides ‘that whenever any judgment for a fine and 
costs shall be rendered in any court, against any defendant, upon any 
prosecution under any of the statutes which may be in force to discour¬ 
age and suppress gaming, only live dollars shall be taxed in the bill of 
costs as a fee for the attorney general, when the same shall be prose¬ 
cuted to conviction; provided, that on conviction for games made felony 
by law, the fee of the attorney general shall be ten dollars, to be taxed 
in the bill of costs and to be paid by the defendant.’ The terms of this 
act apply as well to cases which commenced before the passage as to 
those which might afterwards be originated. Its words apply to the 


1 see 7 , 145; 22 , 240, 374 ; 34 , 56. 




ATTORNEYS GENERA I,. 


435 


rendition of the judgment; the sum of live dollars is to be taxed ‘ when¬ 
ever any judgment shall be rendered.’ The argument, therefore, that 
the legislature meant this provision to apply to prosecutions only which 
should be commenced after the passage of the act, can not be main¬ 
tained. All such construction is excluded by the plain words of the 
law. 

“ But it is insisted that the legislature had no power to reduce the 
attorney general’s tax fee in cases where indictments had been found 
below the sum which was previously allowed by law. This proposition 
necessarily involves the general question whether the compensation of 
officers of the government may be changed, modified and reduced by 
the legislature, during the time for which such officers may have been 
appointed. And there can be no doubt but that such power exists, 
except in particular cases, where by the Constitution it is expressly 
prohibited. The law fixing the compensation to be allowed for the 
discharge of the duties of an office does not constitute a contract 
with the officer who may be appointed, within the meaning of the Con¬ 
stitution of the United States. He takes the office with the liberty 
to relinquish it at any time he thinks proper, and with the understand¬ 
ing that his compensation is subject to legislative control. If this 
were not so, all those provisions in the Constitution which pro¬ 
hibit the legislature from reducing the salaries of certain officers 
are unnecessary. But the introduction of such provisions in the 
Constitution shows the sense of that instrument as to those offices in 
relation to which no such provision exists. We do not perceive that 
the present case, where the compensation is given in certain fees 
attached to the office, is different from those cases where regular sala¬ 
ries are allowed. But it is said this cause had commenced, and a right 
to the fee of ten dollars had vested in defendant in the contingency of 
conviction. We do not think there was any vested right iu this case. 
The Act of 1824 allowed ten dollars on conviction for gaming. The 
right to the ten dollars vested only on conviction, but before that 
occurred in this case, the Act of 1841-2 was’passed, and reduced the fee 
to five dollars. The right to the ten dollars could never, therefore, vest. 
The Circuit court erred in taxing a fee of ten dollars, and the judgment 
must be reversed.” 22, 481. Haynes v. The State. 1842. 

Attorney General Pro Tempore—What Order of Appointment Must 
State.— In this case the order appointing Washburn attorney general pro 
tempore stated only that it appeared to the court the attorney general, 
Murray, was “ incompetent,” because he had been the defendant’s counsel 
previous to his election and qualification. Totten, J.: “The question is, 
was this a valid appointment? The Constitution, art. 6, sec. 5, provides 
that ‘ in all cases where an attorney for any district fails or refuses to 
attend and prosecute, according to law, the court shall have power to 


436 


TENNESSEE CONSTITUTIONAL LAW. 


appoint an attorney pro tempore .’ It is clear that by this clause of the 
Constitution two cases are provided for. First, where the regular attor¬ 
ney for the State fails to attend and prosecute. Second, where he refuses 
to attend and prosecute. In either case the court has power to make 
an appointment pro tempore. If the attorney be present in court, and 
refuse to prosecute for any cause, or without cause, the court has power 
to make an appointment pro tempore; otherwise the attorney has power 
by a willful act to hinder and delay public justice, to the prejudice of the 
State and the prisoner. But it is clear that this is one of the evils against 
which the Constitution intends to provide. In the exercise of the power 
to appoint, it is material to state in the order the facts which render it 
necessary, so that it may appear to be a case under the Constitution. 
For the court has no general power to appoint an attorney for the State, 
but a special power merely, and in its exercise the facts must appear, on 
the existence of which the validity of the appointment depends. Now 
does the order of appointment assume the existence of a case specified 
in the Constitution? It states that the attorney general, having been of 
counsel for the accused, was incompetent to perform his office, and then 
proceeds to make a special appointment. It does not state that he failed 
to attend and prosecute, or refused to attend and prosecute—the cases 
specified in the Constitution—but states a different case not so specified. 
Nor do we see that the cause stated rendered the attorney legally incom¬ 
petent, or that such objection to the exercise of his office would lie 
against him. Certainly it was a good and sufficient reason why he 
should himself ‘refuse to attend and prosecute’; and if he had so acted, 
the power to appoint was clear and explicit. But it does not appear 
that he either offered or refused to prosecute, or took any action in the 
case. We have only the action of the court, which declares him incom¬ 
petent and makes a special appointment for a new cause , not stated in 
the Constitution. We think it clear that the appointment of the attorney 
pro tempore was void, and that it was good cause in arrest of judgment. 
The judgment will therefore be arrested and the prisoner be remanded, 
and be held subject to a regular aud legal proceeding.” 34, 45. Pippin 
v. The State. 1854. 


Attorney General Pro Tem—Appointment of—“To Attend and Prose¬ 
cute.”— Dickinson, Sp. J.: “Appointment of attorney general pro tem. 
by an order reciting that it was made ‘on account of sickness’ of the 
regular attorney general, is valid and within the authority conferred by 
the constitutional provision empowering the courts to make such 
appointment ‘in all cases where the attorney for any district fails or 
refuses to attend and prosecute according to law.’ To state in the order 
a sufficient cause for the failure of the regular attorney general to attend, 
or for his failure to prosecute if present, is the same thing, in legal 


ATTORNEYS GENERAL. 


437 


effect, as to state that he tailed ‘to attend and prosecute/” 89, 547. 
Turner v. The State. 1891. 

Indictment Signed by “Attorney General”—Attorney for the State.— 
McFarland, J.: “For at least fifty years previous to the Constitution of 
1870 this officer was styled an attorney general, and the judicial deci¬ 
sions recognized this as the proper title. Then, was it intended by the 
Constitution of 1870 to change this title? It is provided, sec. 5, art. 6, 
‘an attorney for the State,’ for any circuit or district, etc., shall be 
elected. This is no material change of the language of the Constitu¬ 
tion of 1834. The acts of the legislature passed subsequently in regard 
to this officer, some of them styled him ‘an attorney for the State/ but 
this was no more than had long before been done in the Constitution; 
but certainly no such change was made by the Constitution, nor was any 
such intended. Besides, the court takes judicial knowledge that A. J. 
Caldwell was the proper officer to prefer this indictment, and his having 
designated himself by the title which has been used for more than fifty 
years does not throw doubt upon the question.” 1 66, 21. Greenfield 
v. The State. 1872. 

Attorney General and District Attorney Convertible Terms. — F0LKE3, 
J., held that an indictment signed by the proper officer signing himself 
“district attorney” was good. He said: “We have already seen that 
this officer is referred to in the Constitution of 1834 and of 1870 as 
‘ attorney for the State/ while a reference to our statutes shows that he 
is called indifferently ‘attorney general’ and ‘district attorney.’ He is 
called ‘district attorney’ in the Code at sections 5090a, 900, 3952a, 2310> 
669, 3961, 5596, 5598, 5599, 5568, 1557, and many others, while in sec¬ 
tions 317, 879, 885, 5426, 3962, 3963, 4964, 5600, and numerous others, 
he is called ‘attorney geueral.’ That the terms are used as convertible 
does not seem to admit of doubt. If there be any difference in the fre¬ 
quency of the use of one over the other it appears to be in favor of the 
‘ district attorney.’” 85,205. The State v. Myers. 1886. 

Art. 6, Sec. 6. Judges and attorneys for the State may be 
removed from office by a concurrent vote of both houses of the 
general assembly, each house voting separately; but two-thirds 
of the members to which each house may be entitled must con¬ 
cur in such vote. The vote shall be determined by ayes and 
noes, and the names of the members voting for or against the 
judge or attorney for the State, together with the cause or causes 
of removal, shall be entered on the journal of each house 
respectively. The judge or attorney for the State against whom 
the legislature may be about to proceed, shall receive notice 
thereof, accompanied with a copy of the causes alleged for his 
removal, at least ten days before the day on which either house 
of the general assembly shall act thereupon. 2 [Same as Const. 

1834, art. 6, sec. 6.] 


*T. <fcS.,317: M. &. V., 359. 

a S«e State etc. v. Gaines, art. 6, sec. 1, p. 406; also 88. 754. 



438 


TENNESSEE CONSTITUTIONAL LAW. 


COMPENSATION OF JUDGES. 

Art. 6, Sec. 7. The judges of the Supreme or inferior 
courts shall, at stated times, receive a compensation for their 
services, to be ascertained by law, which shall not be increased 
or diminished during the time for which they are elected. They 
shall not be allowed any fees or perquisites of office, nor hold 
any office of trust or profit under this State or the United 
States. 1 [Same as Const. 1834, art. 6, sec. 7. Const. 1796, art. 5, sec. 3,' used 
“ Superior” instead of “Supreme,” and did not contain the words “or infe¬ 
rior” after the word “ Superior,” but was otherwise the same.] 

Appointment of Member of Congress to be Supreme Judge. —On 

September 18, 1868, Horace Maynard, a member of congress, was 
appointed by Governor Brownlow to the vacancy occasioned by the 
resignation of Judge Milliken of the Supreme court. Nicholson, J.r 
“It is true, as argued, that, by the Constitution of Tennessee, art. 6, 
sec. 7, and the 1 2 Code, 748, a member of congress is disqualified for office 
under the State government, and is guilty of a misdemeanor in holding 
any such office, but it does not follow that, because Mr. Maynard, whilst 
a member of congress, accepted a commission, and qualified as a 
Supreme judge, his acceptance of that office was a nullity. The con¬ 
sequence was, if Governor Brownlow had the authority to appoint him, 
that he thereby surrendered his right to a seat in congress. It is set¬ 
tled, that, on the acceptance and qualification of a person to a second 
office, incompatible with the one he is then holding, the first office is, 
ipso facto, vacated. It operates as an implied resignation—an absolute 
determination of the original office. People v. Carrique, 2 Hill, 93; 
Rex. v. Trelleny, 3 Bur., 1616; Millward v. Thatcher, 2 T. R., 87; 13 
Petersdorff’s Abr., 3. It follows, that when Mr. Maynard was appointed 
as a supreme judge, he vacated his office as a member of congress and 
became a judge of the Supreme court, provided Governor Brownlow 
had any authority to make the appointment; nor does the fact that Mr. 
Maynard continued to serve out his time as a member of congress, 
affect the question before us. That was a matter entirely for the adju¬ 
dication of congress.” 48, 764. Calloway v. Sturm. 1870. 

Salaries of Judges—Special Judge.— The 3 Act of 1873, providing that 
the special judge should be paid out of the salary of the regular judge, 
was declared unconstitutional. Freeman, J., in delivering the opinion, 
said: “ We understand the above clause to mean that the salaries are to 
be fixed by law, ascertained beforehand and made certain, so that the 
judge who accepts the office may then know what he has to depend 
upon for his support, and may reliably expect to receive it while he fills 
the office. But it is said that the judge had notice of this law, and 
knew what to expect. True, he had notice of the act, but if it was in 


1 See Tbe State v. Gaines, art. 6, sec. ], p. 406. 

2 Code 1858, M. & V., 936 et seq. 


3 T. & S., 3930a ; M. & V.. 4695. 



COMPENSATION OF JUDGES. 


439 


conflict with the Constitution he was not precluded from relying *upon 
the Constitution in preference to the act. . . . Their compensation 
is required to be ascertained by law, previously ascertained, for it can 
not be changed during the term. In this case, if this law be valid, the 
salary was not ascertained; it depended upon the judge’s subsequent 
good fortune and other uncertain events. If he fell ill, and needed his 
salary thereby all the more urgently, he might, nevertheless, have none 
if a special judge were elected. We concede that if this be the law, 
then no matter how exacting, it must be enforced; but we hold that it 
is not the spirit of the Constitution. The salaries of the judges have 
not been reduced in the sense of the Constitution; yet the act requires 
a portion of the salary of a judge who may be unfortunate to be 
deducted aud given to some oue else, to pay him for doing the work 
which the judge ought to have done. Does the Constitution require any 
man to accept an office of this character upon such a provision! We 
think certainly not. It was not intended to pay the judges according 
to their physical ability, or to make their compensation depend upon 
contingencies so uncertain—at least when they have been in no default.” 
59, 001. Burch v. Baxter. 1873. 

Reasons for This Provision—Judges’ Salaries—Time and Term.— The 
legislature, by ch. 3, Acts 1879, reduced the salaries of all judges there¬ 
after appointed or elected from $2,500 to $2,000. Horrigan was appointed 
afterward, on August 1, 1879. McFarland, J.: “The argument is that 
this clause was intended to prohibit the increasing or diminishing of a 
judge’s salary during the term for which he is elected. That is to say, 
as the judicial terms are eight years, and the terms of all judges begin 
and end at the same time, it was the intention that all judges holding 
during the term should have the same salary, and that the salary should 
not be increased or diminished during the term; that the judges who 
are elected or appointed to till out uuexpired terms stand, in all respects, 
in the place of the judges whose term they are elected or appointed to 
till. This construction would be desirable in some respects, aud would 
avoid the incongruity indicated, but would require a departure from the 
plain meaning of the words used. If the purpose of the framers of the 
Constitution had been as indicated, it would have been easy to use lan¬ 
guage clearly expressing such intention, but the language is, that the 
compensation shall not be increased or diminished during the time for 
which they are elected. This obviously means during the time and not 
the term for which the judge is elected. We are not at liberty to strain 
the language in order to reach a construction that may comport with 
our notions of justice to the particular judge, or to avoid incongruous 
results. We must give effect to the clearly expressed intention, what¬ 
ever may be the consequences. Furthermore, looking to the reasons 
upon which this clause of the Constitution was doubtless adopted, it 


440 


TENNESSEE CONSTITUTIONAL LAW. 


must-be apparent that the object was to prevent the increase or dimin¬ 
ishing of a judge’s salary while he is in office , so as to relieve him, as far 
as possible, from improper influences, and promote an independent dis¬ 
charge of his duties. 

“If the change takes place before the judge is elected or appointed, 
the evils intended to be guarded against can not well result as to him. 
He accepts the office with a knowledge of the salary as fixed, and no 
injustice is done him. The language of the Constitution is unambig¬ 
uous, and its plain meaning must prevail. It is not denied that the act 
in terms applies to all judges elected or appointed after its passage.” 
Freeman, J., dissented. 72, 613. 1 Gaines , Compt. v. Horrigan. 1880. 

County Judge an “Inferior” Judge—Salary of. — COOPER, J., held: 
“A county judge is an inferior judge within the meaning of the Consti¬ 
tution, so far as he is clothed with judicial power, and his salary can 
neither be increased nor diminished during the time for which he is 
elected, but he is also the accounting officer and general agent of the 
county, and compensation may be made him therefor under the author¬ 
ity vested in the Quarterly court by statute, 2 and their judgment when 
exercised can not be controlled by any other tribunal.” 76, 24. The 
State ex rel. Puckett v. McKee et al. 1881. 

Art. 6, Sec. 8. The jurisdiction of the Circuit, Chancery 
and other inferior courts shall be as now established by law until 
changed by the legislature. 3 [Const. 1834, art. 6, sec. 8: “The juris¬ 
diction of such inferior courts as the legislature may from time to time estab¬ 
lish, shall be regulated by law.”] 


1 See same case, art. 2, sec. 18, p. 298. 8 T. & S., 316; M. & V., 353. 

3 See Jackson v. Nimmo et al., art. 6, sec. 1, p. 409; Third Tenn. Chc’y. Rep., p. 477, and 49 , 475. 



JUDGE’S CHARGE TO JURY. 


441 


JUDGE’S CHARGE TO JURY. 


PAGE. 

Oil Question of Probable Cause — Province 
of Court and Jury in Determining— 


Law and Fact—English Doctrine ... 441 
* * State the Testimony and Declare the Law ’ ’ 

Defined. 442 

In Case of Homicide—Judge Must Leave 
Jury to Draw Conclusions from 
Testimony and Law as Stated by 

Him. 443 

Objects of this Provision —Evils Intended 
to be Remedied —“Shall Not” and 

“May State” Defined. 445 

Duty of Court —Slight Departure from.446 


PAGE. 


With Reference to Change of County Line— 

Judicial Knowledge. 44 ** 

That Certain Acts Would be Grounds for 
Reasonable Apprehension of Dan¬ 
ger-Province of Judge and Jury .. 447 
In Murder Trial —Refusal to Charge Law as 

to Manslaughter. 447 

As to Weight of Evidence or Conclusions... 447 
Court Can Not Direct Jury to Return Par¬ 
ticular Verdict. 448 

As to What is Shown by Certain Enumer¬ 
ated Facts . . 448 


Art. 6, Sec. 9. Judges shall not charge juries with respect 
to matters of fact, but may state the testimony and declare the 
law r . 1 [Same as Const. 1834, art. 6 , sec. 9 .] 

[Const. 1796, Art.5, Sec. 5: ‘‘The judges of the superior and inferiorcourts 
shall not charge juries with respect to matters of fact, but may state the testi¬ 
mony and declare the law.”] 


On Question of Probable Cause—Province of Court and Jury in 
Determining—Law and Fact—English Doctrine. —The circuit judge 
charged the jury “that probable cause was composed partly of law and 
partly of fact, and the court says to the jury if they believe the testi¬ 
mony of the witnesses, there was, in the opinion of the court, no prob¬ 
able cause.” This was assigned as error. Whyte, J.: “It is contended 
for the plaintiff in error that there is a great difference between the law 
as held in England and the law as held in this State, by virtue of the pro¬ 
visions of our Constitution on the subject—that in England the judge 
decides what is probable cause, but here it is the province of the jury 
under the influence of the Constitution, and that this charge of the court 
infringes on their rights in this respect in the present case. A difference 
is supposed by the argument to exist as to the mode of trial of 1 proba¬ 
ble cause’ in the actiou of malicious prosecution between the law in 
England and the law in this State. The difference is predicated upon 
the fifth section of the fifth article of our Constitution, which says: 
‘Courts shall not charge juries with respect to matters of fact, but may 
state the testimony and declare the law.’ But upon examination it will be 
found rather a seeming difference than a real difference. It will not do 
to say upon this instrument (the Constitution), as is sometimes broadly 
said, that probable cause is matter of fact, depends upon the testimony, 
that the jury are the constitutional judges, or triers of the fact, and 
therefore the judges of what is probable cause or not probable cause. 
The Constitution does not warrant this conclusion, that because they are 
the triers, or the judges of the facts, that therefore they are the judges 
of probable cause; for probable cause is the conclusion or result of law 


1 For indirect or unimportant references to this section, see 3 , 500; 5, 167; 21 , 283; 22 , 466; 
24 , 479 ; 38 , 593; 37 , 389; 70 , 5%; 74.211 78.679. 











442 


TENNESSEE CONSTITUTIONAL LAW. 


upon the facts, and to use the expressions in the books, the jurors can 
not respond to the law, nor can the judges respond to the facts. Prob¬ 
able cause, then, in malicious prosecution, being a combined operation 
of fact and law, uecessarily requires the intervention of both the jury 
and the judge to arrive at the result or conclusion of whether probable 
cause or not. . . . 

“The jury decide upon existence of the facts, the judge decides upon 
their operation in law. Thus when the evidence is closed, the judge 
declares to the jury that if they believe the testimony, or facts given in 
evidence to be true, the law arising on that testimony is, or the testimony 
amounts to, probable cause, or not probable cause. And this mode is 
strictly agreeable to our Constitution above stated. It says the courts 
shall not charge juries with respect to matters of fact ; that is, the 
courts shall not say that this or that fact is proved or not proved, or 
that such testimony is to be believed or not believed. Not that the 
court shall not charge the law upon the facts or testimony, for the next 
following expression, that they (to wit, the courts) may state the testi¬ 
mony and declare the law, is explicit as to the meaning of the former. 
It is true that it has been advanced by some very able aud learned 
judges, in former times, that on all personal issues the juries are judges 
of the law as well as of the fact, and in this capacity they may act upon 
the matter before them, and find the issue accordingly. . . . But 

the law at this day is certainly held the other way, pursuant to the com¬ 
mon law doctrine, ad questionem legis respondent predices, ad questionem 
facti respondent juratores, and our Constitution is in accordance with 
this maxim in the place above cited. That the jury are the triers or 
judges of the fact, and the court the declarers or judges of the law upon 
the fact, is not now to be disputed. . . . 

“Now, what part of this charge is wrong? Where is the error? 
We have seen from the books that probable cause is composed of law 
and fact. In the case of Kelton v. Blevins, cited by plaintiff in error, 
the doctrine is thus laid down: ‘Our Constitution hinders the judges- 
from charging the jury as to matters o’f fact; whenever, therefore, an 
action of this kind is commenced, and a plea of not guilty pleaded, the 
jury are to try the question of probable cause, and it is a question then 
compounded of law and fact. The jury are to decide it as other ques¬ 
tions under the direction of the court as to the law. They judge of the 
facts for themselves, and receive the law from the court. What lan¬ 
guage can be more plain than this? It seems to me no comment by 
way of explanation can add to its clearness.” 10 , 332. Williams 
Norwood. 1829. 

“State the Testimony and Declare the Law”—Meaning of—Law 
Applicable to the Case on Trial Only.— GREEN, J.: “The principal ground 
relied on by the counsel for the plaintiff in error is, that the judge who 


JUDGE’S CHARGE TO JURY. 


443 


tried the cause, in his charge to the jury, assumed the right to decide 
the facts of the case, and excluded from the jury the free exercise of 
their constitutional powers. In the part of the charge complained of, 
the judge in substance told the jury that the principle of law read and 
relied upon by defendant’s counsel, that if a stranger, seeing two fight¬ 
ing, helps one and kills the other, it is manslaughter, could have no 
application to a case like this. It is insisted that he here assumed the 
state of facts presented by the evidence in this cause, and excluded the 
jury from an investigation of the facts, so as to ascertain whether they 
brought this case within the principle contended for. The judge may 
‘state the evidence, and charge the law.’ This means that he is to 
charge the law arising upon the evidence so stated by him. He is not 
to charge every principle of law which may be insisted upon by counsel, 
whether it have application to the case under consideration or not, how 
sound soever such principle may be in the abstract. If he were, he 
would be guilty of gross impropriety. Such a course would tend to the 
subversion rather than the attainment of justice. It is as important 
that irrelevant questions of law should be kept out of the view of the 
jury as that they should not be permitted to hear irrelevant facts. In 
either case, to incumber their minds with a mass of irrelevant matter 
would tend to obscure the true matter of inquiry, and lead them astray 
iu the investigation of questions not before them. If a principle of law 
be stated and insisted on by counsel, which manifestly has no applica¬ 
tion to the case, it is the duty of the court to tell the jury it has no 
application, lest they be misled by it. It is a great mistake to suppose 
that a court, in charging the jury, is to deal altogether in abstractions. 
His discussion of legal questions should be confined to such only as are 
directly raised by the evidence iu the cause. From what has been said, 
it follows that if the principle stated and insisted on by the defendant’s 
counsel has no application to this case, the judge did not err in telling 
the jury so.” 12 , 142. 1 Conner v. The State. 1833. 

In Case of Homicide—Judge Must Leave Jury to Draw Conclusions 
from Testimony and Law as Stated by Him.— REESE, J.: “The bill of 
exceptions states that, among other things not objected to, the court 
charged the jury ‘that a slight assault would not of itself justify a 
homicide—as, if a man should slightly pull another’s cravat, which 
would in law be an assault, and the party so assaulted should 
get a bowie knife and kill the other, this would not of itself 
present a case of homicide in self-defense; and, further, that, if the 
jury should return a special verdict in this case, presenting as the 
facts in the case the testimony of James Jones, excluding the testi¬ 
mony of Robert Harrison, and taking as true the testimony of all the 
other witnesses, the court could not, upon such a special verdict, say 


’ Koaflirmed, soe 69, U70. 


444 


TENNESSEE CONSTITUTIONAL LAW. 


the prisoner has made out a case of self-defense; that the jury had a 
right to return a general verdict, and the prisoner had a right to require 
it at their hands. The prisoner was found guilty of manslaughter, and 
presents his appeal in error to this court, and his counsel contends here 
that the charge of his honor, the circuit judge, is inconsistent with” 
(this provision.) . . . “ If this assumption of the prisoner's counsel 
be well founded, the judgment is, of course, erroneous; for the juries 
are the exclusive judges of the credit of witnesses, of the weight of the 
testimony, and the truth of contested statements. ‘Judges shall not 
charge juries with respect to matters of fact;’ that is, they shall not 
decide upon the credit of witnesses, they shall not state in which scale 
there is preponderance of testimony, nor shall they inform them what 
conclusions of fact, from the proof heard, they ought to draw. But, 
‘they may state the testimony, and declare the law’ thereon—that is, in 
the case before us, the judge may say, ‘the witness, Jones, has said so 
and so, or, you have heard and remember the facts stated by him; if 
you believe all those facts to be true, the law thereon is that they do 
not make out a case of homicide sese defendendo. The facts being found 
or admitted, what shall constitute homicide excusable, or manslaughter, 
is a conclusion of law, and not of fact. The case put by us is that which 
really occurred. What is said by the Circuit court on the subject of a 
special verdict is not so strong and so direct against the prisoner as if 
he had said that the law arising upon the statements of Jones, taking 
them all to be true, was that the homicide committed was not excused 
by the assault proved. Perhaps declarations of law, as arising upon 
the facts, are seldom made in the manner, or with the force, presented 
in the case before us. But, be this as it may, we cannot say that the 
honorable judge violated the constitutional rule, or transcended the 
limits of his official and appropriate duty. 

“We have been referred, by the prisoner’s counsel, to a case deter¬ 
mined by this court, at this place, at the December term, 1837, Johnson 
and wife, in error v. The State (MS.) In that case the question for the 
jury to determine was, whether the correction of a child, by the defend¬ 
ant, so far exceeded the reasonable limits of parental duty and authority 
as to amount to a trespass and breach of the peace. A majority of the 
court who determined that case were of opinion that this was a con¬ 
clusion of fact, to be drawn by the jury from all the proof and circum¬ 
stances of the case. But the circuit judge, in substance and effect, 
charged the jury that, if they believed the witnesses, ‘the conduct of 
the defendants was cruel and barbarous in the extreme/ and of course 
that they should be found guilty. This court thought such a charge was 
trenching upon the province of the jury as to matters of fact, and 
reversed the judgment. The ground upon which that decisiou was 
placed presents no obstacle to the conclusion we have arrived at in the 
present case.” 21 , 183. Claxton v. The State. 1840. 


JUDGE’S CHARGE TO JURY. 


445 


Objects of this Provision — Evils Intended to be Remedied — “Shall 
Not” and “May State”—Meaning of. — TURLEY, J.: “This provision 
arose out of the jealousy with which our ancestors always looked upon 
any attempt on the part of the courts to interfere with the peculiar 
province of the jury, the right to determine what facts are proved in a 
cause, and to put a stop to the practice of summing up, as it was and is 
yet practiced in the courts of Great Britain, and in all probability in the 
Colonies before the Revolution, and which consists in telling the jury, 
not what was deposed to, but what was proved. . . . This the framers 

of our Constitution considered a dangerous infraction of the trial by 
jury, and have prohibited it by express terms. “Judges shall not charge 
with respect to matters of fact/ that is, shall not state to the jury what 
facts are proved; to do so is error, for which a case must always be 
reversed. But not being disposed to withhold from the jury any proper 
aid which the judges may be enabled to render them in their investiga¬ 
tion, they have provided that they may state the testimony—that is, 
may, for the purpose of refreshing the memory of the jury, inform 
them what facts the different witnesses have deposed to, leaving them to 
judge of the truth thereof, and to draw their deductions therefrom. It 
will be observed that the prohibition is direct and positive, ‘shall not;’ 
the power permissive, ‘may state.’ The use of the words‘shall’and 
‘may’ in this juxtaposition can not be supposed to have been accidental; 
if the intention had been to make an exercise of the power granted as 
positive as the prohibition, the word‘shall’ would have been used in 
both iustances, viz.: ‘ Shall not charge with respect to matters of fact, 
but shall state the testimony and declare the law.’ The use of the word 
‘ may,’ then, cau not in this clause be considered as synonymous with 
the word ‘ shall/ but leaves it discretionary with the court to state the 
testimony or not, according to the exigency of the case. If the testi¬ 
mony be of a complicated character, difficult of recollection and com¬ 
prehension, and there be a controversy between the parties litigant as 
to what facts are deposed to, it will be the duty of the court either to 
state the testimony or to recall the witness upon the controverted 
points for explanation; but, when there is no dispute relative to the 
facts deposed to, and the testimony is not complicated or difficult of 
recollection, the court, in its discretion, may decline exercising the 
power given it without committing error. This is a legal discretion, and 
the refusal to exercise it is not error, unless it can be shown that injury 
did or might necessarily be supposed to have arisen from this refusal. 
But it is argued that the word ‘may’ is applicable to both the powers 
given to the judges by this clause of the Constitution, viz.: ‘ may state 
the testimony’ and ‘may declare the law;’ and it is assumed that a 
refusal to charge the law is, ipso facto , error, and, therefore, a refusal to 
state the testimony is also, ipso facto, error. We do not think the 


446 


TENNESSEE CONSTITUTIONAL LAW. 


premises upon which this argument rests are correct, that a refusal to 
charge the law is of necessity, in all cases, cause for a reversal; for if 
there be no disputed principle of law, the court need not charge upon 
the law. So, as to the testimony, if there is no dispute as to what is 
deposed to, the court need not state the proof, and this because no 
injury can arise from not exercising the power.” 23, 155. Ivey v. 
Hodges. 1843. 

Duty of Court—Slight Departure From. — GREEN, J., held: “Strictly, 
the duties of the court, as defined by the Constitution, should be per¬ 
formed by stating the evidence and telling the jury what the law would 
be if the facts thus stated to be evidence were proved to their satisfac¬ 
tion; but the departure of the judge from the strict line of his duty is 
very slight, and could not have misled the jury, where it consists in the 
assumption of facts as proved, about which there was no controversy, 
and which were most plainly proved as he stated them, and is not suffi¬ 
cient to require a reversal.” 24, 502. Farquhar v. Toney. 1844. 

With Reference to Change of County Line—Judicial Knowledge.— 
The plaintiff in error was indicted in the Coffee county Circuit court for 
larceny, convicted and sentenced. Appealed. “ During the trial the 
defendant read to the jury an act passed the 30th of January, 1846, 
entitled ‘An Act to attach a portion of the county of Coffee to the county 
of Grundy,’ and the State introduced witnesses to prove that the line 
described in that act would ruu within less than twelve miles of the 
seat of justice of Coffee county. The court told the jury that if the 
line described in said act runs within less than twelve miles of the seat 
of justice of Coffee county it is unconstitutional and void.” 

Green, J.: “It is insisted that his honor erred in telling the jury they 
could disregard the Act of the 30th of January, 1846, attaching a part 
of Coffee county to Grundy county, if, from the proof, they should 
believe the line therein described was within less than twelve miles of 
the seat of justice of Coffee county. 

“Perhaps his honor, in this collateral way, should not have decided 
upon the constitutionality of this act. But we judicially know that this 
act of assembly came directly under review in this court at its last term 
in the case of Gotcher et al. v. Burrows et al., when it was determined 
that the said law was in violation of art. 10, sec. 4, of the Constitution, 
which provides that ‘ no line of such county shall approach the court 
house of any old county from which it may be taken nearer than twelve 
miles.’ . . . This decision had been made previously to the trial in 
the Circuit court of the cause now before us, and it was competent for 
the circuit judge, judicially, to know of the existence of this decision 
of this court, and, without any proof upon the subject, to have stated 
to the jury that the Act of the 30th of January, 1846, read to them by 


JUDGE'S CHARGE TO JURY. 


447 


the defendant, was unconstitutional and void, and could not be looked 
to by them as proof that the offense charged in the indictment had been 
committed in Grundy county. There can, therefore, be no ground to 
reverse this judgment on this point, if it were conceded that his honor 
erred as to the mode of arriving at the conclusion to which the exercise 
of his judicial knowledge would have brought him” 29, 115. Cash v. 
The State. 1849. 

That Certain Acts Would be Grounds for Reasonable Apprehension 
of Danger — Province of Judge and Jury. — SHIELDS, Sp. J.: “The 
proposition of fact to be maintained and established by the plaintiff 
below, was, that the defendant there had done such acts as would 
naturally produce and cause the injury complained of. It was a ques¬ 
tion of fact, to be determined by the jury; yet the court there informed 
the jury that certain specific facts would amount to proof of the issue 
on the part of the plaintiff. Independent of the prohibition in the Con¬ 
stitution, we should condemn this instruction; for it is au ancient rule, 
that whether there be auy evidence or not, is a question for the judge; 
whether it is sufficient evidence, is a question for the jury. The judge 
may decide what is evidence, but it is for the jury to say what is proof. 
But when the judge told the jury that certain acts would be grounds 
for a reasonable apprehension of dauger, and that the party thus pur¬ 
sued might abandon his home, and hold him thus pursuing liable in 
damages, he clearly charged the jury with respect to the matters of 
fact. It was for the jury, and uot the judge, to say what would be such 
reasonable grounds of apprehension as would induce a man of ordinary 
firmness and discretion to so abandou his home as to entitle him to 
maintain au action against the party whose wrongful and unauthorized 
acts induced that apprehension. It is well known to those of us who 
have had experience in investigating questions of fact before juries, 
that very slight intimations from the bench have a commanding influ¬ 
ence over the jury; and judges presiding at such trials should sedulously 
avoid an expression of opinion, further than to declare the law; other¬ 
wise the trial by jury, so highly valued by the English and Americau 
people, will become but au empty and ridiculous form.” 48 , 77. Ellis 
v. Spurgin. 1870. 

In Murder Trial—Refusal to Charge Law as to Manslaughter.— 
McFarland, J., held: “In trials for murder the refusal to instruct the 
jurv upon the law of manslaughter is erroneous, because it discloses 
the opinion of the judge upon a material question of fact, and is hence 
an invasion of the province of the jury.” 65, 491. Little v. The State. 
1873. 

As to Weight of Evidence or Conclusions.— COOPER, J.: “This court 
has invariably held that judges are forbidden to instruct the jury upon 


448 


TENNESSEE CONSTITUTIONAL LAW. 


the weight of evidence or as to the conclusions to which it must bring 
their minds.” 82 , 157. Jones & Son v. Cherokee Iron Co. 1884. 

Court Can Not Direct Jury to Return a Particular Verdict. — CALD¬ 
WELL, J., held: “For the court to direct the jury to return a verdict in 
favor of either party, where there is any conflict in the evidence, is an 
invasion of the province of the jury by the court, for which the case 
will be reversed.” 90 , 638. Cantrell v. K. C. G. and L. & N. R. R. Co. 
1891. 

As to What is Shown by Certain Enumerated Facts. — CALDWELL, J. t 
held: “The court erroneously invades the province of the jury by stat¬ 
ing to them, in his charge in a criminal case, that certain enumerated 
facts shown in proof 1 strongly indicate’ the defendant’s guilt.” 93 , 216. 
Boyer v. The Stale. 1893. 

POWER TO ISSUE WRIT OF CERTIORARI. 

Art. 6, Sec. 10. The judges or justices of inferior courts of 
law and equity shall have power in civil cases to issue writs of 
certiorari to remove any cause, or the transcript of the record 
thereof, from any inferior jurisdiction into such court of law on 
sufficient cause, supported by oath or affirmation. [ Same as Const. 

1834, art. 6, sec. 10; Const. 1796, art. 5, sec. 7.] 

[Cont. 1834, Art. 6, Sec. 10: “Judges or justices of the inferior courts of 
law, as the legislature may establish, may have power in all civil eases to 
issue writs of certiorari to remove any cause, or the transcript of the record 
thereof, from any inferior jurisdiction into said court on sufficient cause, 
supported by oath or affirmation.” ] 

[ Const. 1796, Art. 5, Sec. 6: “ The judges of the superior courts shall have 
power in all civil cases to issue writs of certiorari to remove any cause, or a 
transcript thereof, from any inferior jurisdiction into their court on sufficient 
cause, supported by oath or affirmation.” ] 

[ Const. 1796, Art. 5, Sec. 7: “ The judges or justices of the inferior courts 
of law shall have power in all civil cases to issue writs of certiorari to remove 
any cause, or a transcript thereof, from any inferior jurisdiction into their 
court on sufficient cause, supported by oath or affirmation.”] 

Certiorari in Tennessee and North Carolina—Reasons for This Section. 
—Whyte, J.: “It hath been argued, in order to show that the decision 
at Carthage ought to be extended, that this writ by our law is a consti¬ 
tutional writ, given in civil cases by express words, both to superior and 
inferior courts, for the removal of causes from inferior jurisdictions upon 
sufficient cause, supported by oath or affirmation, Constitution, art. 5, 
secs. 6 and 7, to which no limitation of time is annexed, that it therefore, 
it is argued, deserves consideration, and is a matter of delicacy to say 
that the court will impose a limitation, when the Constitution hath not 
thought proper to do so. To this it is answered, that at the time of the 
adoption of our Constitution the State of North Carolina, of which we 
had previously formed a part, had not so sufficiently and firmly estab¬ 
lished its certiorari practice as not to have it disputed; it was opposed 
a long time in that State by the ablest counsel, and even then continued 
to be so opposed, The certiorari seemed to the framers of our Cousti- 


POWER TO ISSUE WRIT OF CERTIORARI. 


449 


tution a matter of too much consequence to the interests of society to 
hazard its establishment, as in North Carolina, with the courts, assailed 
as it was; and they therefore at once secured its existence and the out¬ 
lines of its use by constitutional provision, thereby settling the question 
agitated in North Carolina, as far as it regarded this State. But it seems 
to me the Constitution regarded nothing further than what was expressed, 
leaving the particular application of it to the discretion of the courts of 
the State, upon questions as they should arise, in their different bearings 
upon society. It is believed the construction of the Constitution, as 
contended for by the defendant in error, would not comport with the 
views of its framers. To extend the limits of its application indefinitely 
would be productive of the greatest evils to society. To extend it fur¬ 
ther than the case at Carthage has done is considered unsafe, and might 
hazard the repose and quiet of the country. We, in the spirit of the 
framers of the Constitution, are friendly to the certiorari , and therefore 
wish to support it, but we consider this to be best effected by not 
enlarging the field of its operation, but by confining it within its present 
bounds.” 5, 145. Perlcins v. Hadley. 1817. 

Certiorari Granted by Two Justices. — GREEN, J.: “By the 'Act of 
1833, ch. 65, sec. 2, two justices of the peace are empowered to grant 
a certiorari to remove proceedings from before justices of the peace into 
the Circuit court. It is said this act is unconstitutional, and the Circuit 
court so considered. The court is of opinion that the power secured to 
the judges of the superior courts by the Constitution, in art. 5, sec. 6, 
and to the judges and justices of the inferior courts in the seventh sec¬ 
tion of the same article, was only intended to restrain the legislature 
from abridging the right of the citizen to this remedy, and not to exclude 
all power of legislation upon the subject. Hence, many acts have been 
passed by the legislature in furtherance of the iutention of the framers 
of the constitution in this particular. By the Act of 1801, ch. 7, sec. 4, 
it is enacted that an application for certiorari to remove the proceedings 
from justice of the peace to the County court, must be made to two justices 
of the peace within twenty days after the rendition of the judgment. 
Many other acts regulating this subject have been passed, none of which 
being an abridgment of the power conferred in the sixth and seventh 
sections ot’ the fifth article of the Constitution have been regarded as in 
violation of that instrument. Although the sixth section, before referred 
to, confers on the judges of the superior courts power to grant a certi¬ 
orari to remove the transcript of a civil cause from any inferior court 
of record to the superior court, yet it says nothing about a criminal 
cause, or the r^noval of causes from before justices of the peace. But 
by the Act of 1829, ch. 16, sec. 2, the power was conferred on the circuit 

* Code 1858, 3127 ; T. & S. 3127; M. & V. 3843. 


29 



450 


TENNESSEE CONSTITUTIONAL LAW. 


judges to remove causes into their courts from before justices of the 
peace; aud this they had been in the constant practice of doing before 
the passage of that act, and also of granting this writ for the removal 
into their courts of criminal causes from military tribunals, in the exer¬ 
cise of a power analogous to that of the court of king’s bench in 
England. If the assumption in this case, that the Constitution having 
conferred certain powers, the exercise of all other powers upon that 
subject is excluded, then this practice of the courts and these acts of 
the legislature were all unauthorized. But they have never been so 
considered, and, manifestly, instead of being infractions of the Consti¬ 
tution, are in furtherance of the intention of its framers. The Act of 
1833, ch. 65, is not, therefore, unconstitutional.” 15, 22. Duggan v. 
McKinney. 1834. 

Limits of Remedy by Writ of Certiorari. — McHENRY, Sp. J.: “The 
power of the legislature, under the Constitution, to regulate the remedy 
by writ of certiorari , so as not to abridge the rights of the citizen, can 
not be successfully questioned. Duggan v. McKinney. Assuming this 
power, the legislature, in Code, ^ec. 3123, has proceeded to prescribe 
what shall be the limits and conditions of the remedy by writ of 
certiorari , in general terms. It is certain there is no specific legislation 
regulating the remedy in question, as applicable to the precise facts 
detailed as aforesaid. The case must, therefore, if this remedy be allow¬ 
able, fall within the scope of sec. 3123. The section of the Constitution 
quoted requires that the removal shall be of a ‘cause or the transcript 
of the record.’ It shall be from an ‘inferior jurisdiction.’ It shall be 
‘on sufficient cause.’ The legislature, in the exercise of its power to 
regulate the writ, has provided that the inferior tribunal shall be such, 
or the board, or the officers, as is invested with judicial functions. To 
sum up, under the Constitution and the law, before the writs of certiorari 
can be invoked or awarded, there must be a ‘cause,’ the inferior juris¬ 
diction, whether a tribunal, board, or officer, must have exercised 
judicial functions; and sufficient cause must be shown for the removal. 
And under sec. 3123, of the Code, other facts must exist to authorize 
the remedy in question. The inferior tribunal must have exercised its 
jurisdiction, or must be acting illegally, aud further, in the judgment of 
the court, or officer granting the writ, it must appear ‘there is no other 
plain, speedy or adequate remedy.’ These observations are confined 
specially and exclusively to the sections of the Constitution and Code 
above copied.” 62, 269. 2 j Bouldin v. Lockhart. 1873. 


1 M. & V., 3838. 


2 See same case, art. 10, sec. 4. 



INCOMPETENCY OF JUDGES. 


451 


INCOMPETENCY OF JUDGES. 


PAGE. 


Judge — Incompetency — Relationship to 

Parties. 451 

Justices of the Peace—Relation to Parties 
Litigant — When Judgment Not 

Void—Certiorari. 452 

Election of Special Judge by the Bar. 453 


Special Judge of Inferior Court—Object of 

this Provision—Temporary Vacancy 453 


PAGE. 


, Special Judge — Selection by Members of 


Bar. 


Special Judge —Selection 

by Consent of 

Parties. 


Same —In Criminal Cases.. 

. 455 

Salarv of Special Judge_ 

.455 

Tax Assessor Not a Judge.. 



Art. 6, Sec. 11. No judge of the Supreme or inferior courts 
shall preside on the trial of any cause in the event of which he 
may be interested, or where either of the parties shall be con¬ 
nected with him by affinity or consanguinity, within such degrees 
as may be prescribed by law, or in which he may have been of 
counsel, or in which he may have presided in any inferior court, 
except by consent of all the parties. In case all or any of the 
judges of the Supreme court shall be thus disqualified from pre¬ 
siding on the trial of any cause or causes, the court, or the judges 
thereof, shall certify the same to the governor of the State, and 
he shall forthwith specially commission the requisite number of 
men of law knowledge for the trial and determination thereof. 
[Same as Coust. 1834, art. 6, sec. ll.] The legislature may, by general 
laws, make provision that special judges may be appointed to 
hold any court the judge of which shall be unable or fail to 
attend or sit, or to hear any cause in which the judge may be 
incompetent. 1 

[Concluding clause of Const. 1834, Art. 6, Sec. 11: “ In case of sickness of 
any of the judges of the Supreme or inferior courts so that they or any of them 
are unable to attend, the legislature shall be authorized to make provision by 
the general laws that special judges may be appointed to attend said courts.”] 

[Const. 1796, Art. 5, Sec. 8. “ No judge shall sit on the trial of any cause 
when the parties shall be connected with him by 3 affinity or consanguinity, 
except by consent of the parties. In case all the judges of the superior courts 
shall be interested in the event of any other cause or related to all or either of 
the parties, the governor of the State shall in such case specially commission 
three men of law knowledge for the determination thereof.”] 


Judge—Incompetency—Relationship. — COOPER, J., held ill this Case 
that a judge is not iucompeteut, under the Constitution aud laws 2 of 
this State, to sit in a cause in which the husband of his wife’s sister is a 
party. In this opinion Judge Cooper reviewed the case of Waterhouse 
v. Martin, and said: “In practice, the precedent set by Judge Whyte in 
Waterhouse v. Martin has usually been followed by this court. The 
judge, whose competency has been called in question, has been allowed 


1 See State v. Solomons, art. 1, sec. 10, p. 93 ; also 3, 477 ; 5,72; 7,129; 16 . 499 ; 32,178; 59,33; 

88, 13. 

2 T. A S., 4098; M. A V., 4873. 

3 In the case of Waterhouse v. Martin, 7 , 379, decided in 1824, Whyte. Haywood, and Peck 
were the judges Whyte being married to the sister of Martin’s mother, and Thomas Haywood, 
son of Judge Haywood, to her sister, the question was made by counsel on both sides whether 
either of these judges were competent to sit in the case. Judge Whyte was admitted to be con¬ 
nected with Martin by affinity. The counsel for Martin insisted that Judge Haywood, also, was 
connected with Martin by affinity. Judge Whyte declined to give an opinion on this point, 
claiming that it should be decided by Judge Haywood alone. Judge Haywood, after reviewing 
the ouestion said- “If this view of the case be correct, here is such a degree of nearness as, 
according to the spirit of our Constitution, disqualifies the judge to whom the exception applies 
But we will keep this point under consideration a few days, and will look into authorities, and 
mention the subject again.” Finally an opinion was obtained from Judge Whytf.. The following 
day after hearing further argument, he delivered an “addition” to Ins opinion, in which he 











452 


TENNESSEE CONSTITUTIONAL LAW. 


to decide for himself the question of his competency, the parties to 
the cause acquiescing in his action. As a result, a judge has sometimes 
declined to sit from motives of delicacy, when not in fact incompetent 
by law. Whether as a court we would not consider ourselves bound 
by the decision in Waterhouse v. Martin, if the point were squarely 
raised by the parties, we need not stop to inquire.” 78, 5. Hume et 
al. v. Commercial National Bank et al. 1882. 

Justices of the Peace—Relation to Parties Litigant—Judgment Not 
Void—When—Certiorari. — Cooper, J., held: “ A judgment rendered by 
a justice of the peace who is related to one of the parties within the 
prohibited degree, 1 without objection made by the judgment debtor on 
that ground, is not void, but voidable only; and therefore a certiorari 
for that cause will not lie to quash an execution issued on the judg¬ 
ment.” This decision overruled the opinion in Reams v. Kearns, 45, 
217; Mathes v. The State, 50, 127; and Smith v. Pearce, 65, 72. In 
reviewing these cases Judge Cooper said: “If it be that a judgment is 
absolutely void which has been rendered by an incompetent judge, and 
that any party may have it so declared at any time afterwards upon 
proof of the fact, it would present an anomaly in the law bearing upon 
judgments and decrees, and lead to some curious results. The statute, 
it will be remembered, prohibits a judge or justice from sitting when 
he is related to either of the parties, and if the judgment be void it will 
be void although rendered against the party to whom the judge is related, 
and so it was held in Smith v. Pearce, 6 Baxt., 72. That case is the more 
remarkable as the complainant had waived the incompetency of the 
judge, although not in writing, and was yet allowed to annul the judg¬ 
ment upon his own application to a court of equity, without assigning 
any other ground for relief. It is scarcely possible the constitutional 
convention or the legislature could have contemplated such a result. 
The Constitution and the statute were unquestionably intended to secure 
to parties litigant the right of trial by an impartial judge, but they do 
not provide that every judgment rendered by an incompetent judge shall 
be void. The Constitution and the statutes provide that every judge 


said that a judge “can not be disqualified by the opinion of others; it is his duty to sit by his own 
judgment alone, upon his own responsibility. It never would do, on the one hand, for a judge 
to shrink from his duty, and shelter himself under the opinion of a majority, allowing his dis¬ 
qualification, or, on the other hand, to be driven from the discharge of his duty by the opinion of 
a like majority, denouncing him disqualified.” At a subsequent day of the term, when the case 
was about to be called, Judge Haywood, for himself and Judge Peck, delivered the final opinion, 
in which they held: “The judges are bound to interpret the Constitution in all its parts, and, 
therefore, to determine whether, under the provision of art. 5, sec. 8, of the Constitution of 1796, 
one of its members was disqualified to sit in a particular cause, by reason of his connection, by 
affinity or consanguinity, with one of the parties; it is not a question for the judge to determine 
for himself. And a judge who is confessedly disqualified by such connection to sit in the cause 
may yet determine the question of the disqualification of a brother judge. There is no connection 
by affinity between a party to the suit and the judge whose son’s wife is aunt of such party.” As 
a result of this decision, the Constitution of 1834 was amended, fixing the affinity “ within such 
degree as may be prescribed by law,” and a law was afterward passed to obviate the difficulties 
experienced in the above case in determining what was meant bv the word “affinity.” Code 1858 
3913, 4098; T. & S., 3913; M. & V., 4671. 3 

1 T. & S., 4098; M. & V., 4873. 



INCOMPETENCY OF JUDGES. 


453 


shall be of a certain age, but the acts of a judge under the prescribed 
age would be valid, not void. Blackburn v. The State, 3 Head, 690. 
And so of the acts of a judge whose title might be successfully con¬ 
tested. Turney v. Dibrell, 3 Baxt., 235. These decisions, it is true, are 
rested upon a principle not applicable to the acts of a judge incompetent 
from relationship to one of the parties. They show, however, that a 
constitutional and statutory prohibition do not, necessarily, render 
judicial acts void.” 76, 759. Holmes v. Eason. 1882. 

Special Judge—Election by the Bar. — The constitutionality of the 
l Act of 1870, ch. 78, sec. 1, sess. A., p. 125, authorizing an election of a 
special judge of inferior courts of record to preside in case of the 
incompetency or absence of the regular judge was considered. Free¬ 
man, J.: “ It will be seen that in case of the judges of the Supreme 
court the Constitution itself provides for the governor's commissioning 
men to try and determine the cases in which they are incompetent. But 
in case of a judge of an inferior court the legislature is left to make 
provision that special judges may be appointed to hold any court. It 
is not a provision for tilling a vacancy, but goes upon the assumption 
that the office itself is filled by the regular incumbent, who fails to 
attend and sit, or is incompetent to try any cause on the docket. After 
looking carefully into the various provisions of the Constitution bearing 
on the question, we conclude that the Constitution did not intend to 
authorize the filling of an office, but only to allow the legislature to pro¬ 
vide for the temporary appointment of some one to ‘hold any court' 
when the judge failed to attend and sit, or was incompetent; and that 
the mode of such appointment is within the discretion of the legis¬ 
lature. We can see no objection to making this appointment by the 
members of the bar. It no more contravenes the ‘principle' of univer¬ 
sal suffrage and election of all officers by the people, as insisted by 
counsel, than would an act of the legislature which should provide for 
the appointment of a person to hold the court, by the governor. The 
members of the bar are interested in selecting the best man for the 
place, and certainly are better qualified to judge of the fitness of the 
party who may be selected by them than the governor of the State, 
who may know nothing ou the subject.” 50, 163. 2 Ligan v. The State. 
1871. 

Special Judge of Inferior Court — This Provision for Temporary 
Absence of Regular Judge — Not to Fill Vacancies. — FREEMAN, J.: “It 
will be seen that in case of disqualification of judge of the Supreme 
court, the governor is to specially commission some one to try the case 
in which he is disqualified. But in reference to the inferior courts, the 
providing for such incompetency or disqualification is left entirely to 


1 T. & S., 3930a ; M. & V., 4095 et seq. 


3 See same case, art. 1, sec. 16, p. 111. 



454 


TENNESSEE CONSTITUTIONAL LAW. 


the legislature, and all that is required is that it shall be by 1 general 
laws/ It is true the word ‘appointment’ is used, but we think this 
only means the selection or designation of some one to hold the court 
or hear any case in which the judge is incompetent. The provision is 
not to enable the legislature to provide for filling a vacancy in an office, 
but only to Supply a temporary absence of the judge of the court, or in 
case he is disqualified to try any case, to enable the legislature to meet 
the exigency by enacting a general law to meet all such cases. The 
Constitution goes on the assumption that the office of judge is filled, 
but the officer is absent or incompetent to sit, and to meet such cases 
the legislature is left to its discretion to provide for them. We think 
the legislature have done so, and see no objection to the mode which 
they have prescribed. On the contrary, we can see no better mode of 
meeting the exigency than the one provided by the statute, and as we 
can not see that it conflicts with the Constitution, but as we think 
accords with it, we hold the act to be the law of the land.” 52, 706. 
l Hundhausen v. Insurance Co. 1871. 

Selection of Special Judge by Members of the Bar Present. — Dead- 
erick, J.: “The Act of 1870, Code, sec. 3930a, 2 was passed in pursuance 
of the power conferred upon the legislature by the above cited section 
of the Constitution, and confers the power of appointment upon the 
attorneys of the court present, prescribing the qualifications of the 
appointee, and the mode of his selection. We are unable to see any 
reason why the legislature might not confer this power of appointment 
upon the members of the bar present at the court. They are quite as 
competent to make a judicious selection as any other depository of the 
power that we can imagine. Upon the score of convenience to suitors 
and to the bar, the arrangement seems to be an eligible one. The Con¬ 
stitution confers the power on the legislature ‘to make provision that 
special judges may be appointed to hear any cause in which the judge 
may be incompetent,’ without any limitation or restriction as to the 
mode in which the discretion conferred should be exercised, and we can 
see nothing in the act inconsistent with any provision of the Constitu¬ 
tion.” 66, 320. Halliburton v. Brooks. 1874. 

Special Judges Incompetent to Try Cases When Selected by Consent 
of All Parties. — Turney, J.: “The regular judge, N. W. McConnell, 
being incompetent to try this cause, by reason of his being counsel in 
the cause, it was agreed by both the counsel for the State and the pris¬ 
oner, and the prisoner himself, that S. F. Wilson, a member of the bar, 
shall preside as special judge in the trial of this cause; thereupon 
N. W. McConnell retired from the bench and S. F. Wilson took the bench. 
Was this proceeding regular and according to the laws of the State? 


1 See same case, art. 6, sec. 2, p. 420; T. <& S., 3930a; M. & V., 4695. 


2 M. & V., 4695. 



INCOMPETENCY OF JUDGES. 


455 


We think not. There is no provision of the Constitution nor act of the 
legislature authorizing or directing the constitution of a court, or the 
supply of a vacancy for incompetency or other cause by the mode pur¬ 
sued in this case. This was not an inferior court created by the legis¬ 
lature, nor was it an election by the attorneys of the court, as allowed 
by ch. 78, sec. 1, of the *Act of 1870. In the appointment or selection of 
special judges in criminal cases, the law authorizing it must be strictly 
pursued and observed. As already stated, there was no authority under 
the Constitution or by statute for the proceedings in this case. The 
result is, the entire proceedings, verdicts and judgments, are nullities, 
leaving the case as if no trial whatever had been had. The prisoner 
was never in jeopardy, and is remanded for trial de novo ” 68, 485. 
Glasgow v. The State. 1877. 

Special Judge in Criminal Cases “By Consent of Parties” Not 
Allowed.—C ooper, J.: ‘‘The criminal laws of the State can only be exe¬ 
cuted by the tribunals and judicial officers of the State constitutionally 
and legally vested with the necessary authority. A person charged with 
crime ought neither to be required nor permitted to select a judge to 
try his case. And even if the legislature might constitutionally author¬ 
ize a departure from the rule, there is no statute sanctioning the pro¬ 
ceeding. The 2 Code, sec. 3921, limits the right of the parties to select a 
judge by consent to civil cases. The proceedings, as this court has here¬ 
tofore held in a felony case, are void, and the defendant never having 
been in jeopardy, the case must be remanded for trial.” 70, G75. Neil 
v. The State. 1879. 

Special Judges— Salary. —DEADERICK, J., held: “The 3 Act of 1877, 
ch. 135, which provides ‘that hereafter, when by reason of the iucom- 
petency, sickness, or other cause, any judge or chancellor of an inferior 
court shall be unable to hold his court, and a special judge shall be 
appointed or elected, said special judge shall receive no compensation 
from the State, unless in the recommendation or certificate of the 
regular judge or chancellor for the appointment of such special judge 
or chancellor he shall expressly authorize the said special judge or 
chancellor to be paid out of his regular salary/ is constitutional. In 
delivering the opinion he said: “It is only by virtue of the law that a 
salary can be claimed for official services. The legislature may refuse, 
as they have done in this case, to give any pay out of the State treasury 
to special judges, unless the regular judge agrees that it may be taken 
out of his salary. This he may do, or may not do. But unless he 
voluntarily relinquishes a part of his salary, he is entitled to it all. But 
if he chooses to release a part, we see no reason why he may not do it. 
The legislature, undoubtedly, might make provision for the payment of 


1 M. & V., 4682 etseq. 


a T. & S., 3921; M. & V., 4682. 


' M. A V.. 4693. 



556 


TENNESSEE CONSTITUTIONAL LAW. 


special judges. But we think they have the undoubted power to refuse 
to do so if they think proper, and the comptroller can only issue his 
warrant for the payment of money where such payment is authorized 
by law.” Judge Turney dissented. 83, 430. Pickard v. Henderson. 
1885. 

Tax Assessor Not a Judge—Assessments—Assessors’ Interest—Due 
Process of Law—U. S. Constitution, Art. 14, Sec. 1. — The act under 
consideration here was that of 1890 (ex. sess.), ch. 30, sec. 1. Wilkes, 
J., held: “A tax assessment, or the statute authorizing it, is not void by 
reason of the fact that the compensation of the assessor is fixed in pro¬ 
portion to the amount of taxes assessed, collected and paid over. The 
tax assessor is not the judge of auy court within the meaning of that 
provision of the State Constitution forbidding judges to preside in causes 
where they may be interested. The ‘due process’ clause of the Four¬ 
teenth Amendment of the Federal Constitution is not violated by such 
statute or assessment.” 94, 297. Grundy County v. T. C ., I. & R. R. 
Co. 1895. 


PROCESS AND INDICTMENTS. 

Art. 6, Sec. 12. All writs and other process shall run in the 
name of the State of Tennessee, and bear test and be signed by 
the respective clerks. Indictments shall conclude: “Against the 
peace and dignity of the State.” 1 [Same as Const. 1834, art. 6, sec. 

12; Const. 1796, art. 5, sec. 9.] 

To What Process This Section Applies—Distress Warrant. — McKlN- 
ney, J., held: “This requirement applies to all process, civil or crimi¬ 
nal, issued by any court or tribunal established by law, having authority 
to issue process, also to process issued under a valid corporation ordi¬ 
nance, or by law. A distress warrant issued by the recorder of a muni¬ 
cipal corporation to collect a privilege is a process in the legal sense and 
in the sense of the Constitution, and must be issued in the name of the 
State. If issued in the name of the municipal corporation it is void.” 
30, 250. Mayor etc. of Nashville v. Pearl J 1850. 

Venire Facias Juratores Not Process.— SNEED, J., held: “A 
venire facias juratores is not process within the meaning of the Consti¬ 
tution, and may be issued and signed by the judge of a court who is 
authorized to appoint the jurors, and ‘to cause them to be summoned.’” 
50,338. White v. The State. 1872. 

Attachments — Who May Issue — Test. — McFaRLAND, J.: “The argu¬ 
ment of defendant’s counsel is that the chancellor had no authority to 
issue the attachment, and for this position the twelfth section of the sixth 


1 7 , 76; 32 , 334 . 


2 Meigs’ Digest, vol. 2, p. 937. 



PROCESS AND INDICTMENTS. 


457 


article of the Constitution is relied upon. . . . Section 3463 1 gives 
to chancellors and judges of Circuit, Criminal or special courts, justices 
of the peace, or clerks of the court to which the writ is returnable, 
power to grant the writ; but it is argued that the power to issue the 
writ does not, under this, coupled with the above provision of the Con¬ 
stitution, belong to the judges, but only to the clerks of the court to 
which the writ is returnable. We have not found any satisfactory judi¬ 
cial exposition of the character of the 1 writs and process’ embraced in 
the above clause of the Constitution. But, we find by the original Act 
of 1793, ch. 1, that the authority to issue writs of attachment was given 
alone to judges of the Circuit court and to justices of the peace, and 
the form is therein provided, showing that it was to be signed by the 
judge or justice. It was held by this court, in the case of Morris v. 
Davis, 4 Sneed, 452, that au attachment issued by a clerk of the Circuit 
court, in aid of au action of tort upon the fiat of a judge, was void. 
Although it was conceded, that under the Act of 1843 the ancillary 
attachment was given in a case of that character, it was held void upon 
the ground that the clerk had no authority to issue process of that 
character. It was said that the authority to issue this process was con¬ 
fined alone to judges and justices of the peace, and was never con¬ 
ferred upon clerks of the courts uutil the Act of 1851-2, ch. 265, sec. 11. 
Upon this authority, and the legislation and practice, we must hold that 
the above provision of the Constitution does not prevent the legislature 
from authorizing judges to issue writs of attachment. We will not, 
however, attempt to define to what writs or process the clause in ques¬ 
tion has reference.” 65,286. Lylev. Longley. 1873. 

Process Not in Name of State.—CALDWELL, J., held: “A writ* or 
other process that does not run in the name of the State is void upon 
its face, and that ‘an ex parte order by a criminal judge for the re-arrest 
and detention of a discharged workhouse convict is void, and affords uo 
protection to the officer executing it, where it appears upon the face of 
the order that the arrest is to be made in disregard and contempt of 
the judgment of another court discharging the convict upon habeas 
corpus .” 92, 520. McLendon v. The State. 1893. 

Indictment —Contra Pacem. — SNEED, J.: “An indictment in this State 
that does not conclude, 4 against the peace and dignity of the State/ is a 
nullity. It is a positive injunction of the Constitution itself, that such 
shall be the conclusion of every indictment. It is, therefore, a matter 
that can not be affected by legislation, and a defect that cau not be 
ignored by the courts. Au indictment without these words is not an 
accusation of crime, and not an indictment in the sense of the Constitu¬ 
tion. No conviction upon such au indictment could be permitted to 


1 M. & V.. 4202. 


3 T. &. S.. 8720, 3723: M. <k V.. 4470. 4473. 


458 


TENNESSEE CONSTITUTIONAL LAW. 


stand; and a prisoner can not waive his rights in this respect, as it is 
the imperative mandate of the Constitution that all crimes shall be 
prosecuted by presentment or indictment, and that all indictments shall 
conclude, ‘ against the peace and dignity of the State/ . . . The 

conclusion, ‘against the peace and dignity of the State/ in the last count, 
relates to all other preceding counts.” 50, 220. Rice v. The State. 
1871. 


CLERKS OF COURTS. 


Art. 6, Sec. 13. Judges of the Supreme court shall appoint 
their clerks, who shall hold their offices for six years. Chancellors 
shall appoint their clerks and masters, who shall hold their 
offices for six years. Clerks of the inferior courts holden in the 
respective counties or districts shall be elected by the qualified 
voters thereof for the term of four years. Any clerk may be 
removed from office for malfeasance, incompetency, or neglect of 
duty, in such manner as may be prescribed by law. 1 [Const. 1834, 
art. 6, sec. 13, after the word “chancellors” and before the word “shall,” con¬ 
tained these words, “if courts of chancery shall be established.” After the 
word “offices,” in the second line, appeared the words, “for a period of.” 
Otherwise, the same.] 

[Const. 1796, Art. 5, Sec. 10: “ Erch court shall appoint its own clerk, who 
may hold his office during good behavior.” 2 ] 


Constitutional Term of Office—Election to Office Requires a Legislative 
Grant.— McKinney, J.: “The questiou in this case is whether the 
plaintiff in error or the defendant is entitled to the office of clerk of the 
Circuit court of Hancock county. The act to establish said county was 
passed on the 7th day of January, 1844. By the seventh section of the 
act it is provided that the election of county officers for said county 
shall be on the same day and under the same rules and regulations as 
provided by law for the election of officers in the other counties in this 
State. And, by the twentieth section, it is further provided that if said 
county ‘shall fail to organize against the first Saturday in March next, 
and consequently fail to elect necessary county officers, as prescribed in 
the seventh section of this act, they shall proceed to elect their county 
officers on the first Saturday in July next thereafter, under the same 
rules and regulations as now prescribed by law, and such officers, so 
elected, shall hold their offices until the regular time of electing county 
officers in this State, and no longer. There was no organization of said 


1 See Northern v. Barnes, art. 6, sec. 2, p. 424. 

2 In the case of The State v. Turk, 8, 287, decided in 1827, Crabb, J., held: “The general 
assembly have an unquestionable right to supply the mode of executing a power, or a duty 
devolved by the Constitution, in general terms, on any citizen or body of citizens, provided that 
mode do not come in conflict with any of the injunctions of the Constitution, and is consistent 
with all its principles. The Act of 1796, 3, therefore, prescribing the time and manner of 
electing a clerk of the County court, is constitutional ; and an appointment by that court of a 
, person to act as clerk pro tern., until an election can be held in accordance with the requirements 
of the law, is good for the purpose intended, and does not clothe such person with the office of 
clerk, to be held under the tenure prescribed by the Constitution.” See same case, art. 2, sec. 2, 
p. 244. 

With reference to Const. 1796, art. 5, sec. 10, it was held by Haywood, J., that this provision 
prevents the repeal of a grant once issued by the State, unless in the way pointed out by the law 
of the land. 5, 213. Overton’s Lessee v. Campbell. 1818. Meigs’ Digest, vol. 2, p. 927. 



CLERKS OF COURTS. 


459 


county under the foregoing act, and at the ensuing session of the general 
assembly, viz., on the 29th of January, 1846, an amended act was passed 
authorizing the commissioners to procure a resurvey of said county, so 
as to avoid constitutional objections. The second section of said ameuded 
act provides ‘that alter the commissioners shall have made the resurvey 
ot said county of Hancock, as provided for in the first section of this 
act, they shall then proceed to organize said county of Hancock, as 
required by the act which this is intended to amend.’ It appears from 
the statement of facts agreed upon by the parties and set forth in the 
record, that said county was organized ‘by the election of county officers 
on the 3d day of December, 1846, at which election Marshall Brewer was 
elected clerk of the Circuit court of Hancock county, and at the October 
term, 1847, of said court said Brewer was admitted to the office of clerk 
of said court;’ and it is further agreed that at the election for county 
officers in said county, at the regular time of election, viz., on the 4th 
day of March, 1848, the defendant in error, William B. Davis, was law¬ 
fully elected by the people clerk of said court. 

“At the May term, 1848, of said court the defendant in error pro¬ 
duced to the court the certificate of his election, and moved to be 
admitted to qualify, and to be inducted into said office. This motion was 
opposed by the plaintiff in error, who claimed the right to hold said 
office for the term of four years from his election, and leave was granted 
him by the court to appear and defend his right thereto. On argument, 
the circuit judge held that the defendant in error was legally entitled to 
said office, and ordered that he should be qualified and admitted accord¬ 
ingly, to reverse which order an appeal in error is prosecuted in this 
court. 

“We are of opinion, upon the foregoing state of facts, that the 
defendant in error was properly held entitled to be admitted to said 
office, but for a reason very different from that urged in argument in his 
behalf. It is unquestionably true that the election of Brewer to the 
said office, on the 3d of December, 1846, had such election been 
authorized by law, would have entitled him to hold office for the full 
term of four years from the time of his qualification, notwithstanding 
any restriction which the legislature may have attempted to impose 
limiting his continuance in office to a shorter period. . . . There is 

no authority to be found in the Constitution for an election for a shorter 
period. And, although the election may be fixed, as in this case, at a 
time different from that appointed by law for the election of county 
officers in the other counties of the State, or to fill a vacancy occasioned 
by the death, resignation or removal of the prior incumbent, still, in 
either case, the person elected will be entitled to hold his office for the 
full constitutional term. It is uot competent for the legislature to 
shorten the term, and any enactment to that effect is void. Such is the 


460 


TENNESSEE CONSTITUTIONAL LAW. 


rule applicable to all elections under the Constitution, whether by the 
legislature or people. The argument that this rule will lead to con¬ 
fusion and want of uniformity in the time of holding the elections is of 
little force, for, as is said in the case of Powers v. Hurst, 2 Humph., 24, 
such uniformity is of no practical utility, and, were it otherwise, is not 
attainable. If, therefore, the case rested solely upon this ground, we 
should not hesitate to reverse the judgment of the Circuit court.” 28, 
212. Brewer v. Davis. 1848. 

FINES OF LESS THAN FIFTY DOLLARS. 

Art. 6, Sec. 14. No fine shall be laid on any citizen of this 
State that shall exceed fifty dollars, unless it shall be assessed by 
a jury of his peers, who shall assess the fine at the time they 
find the fact, if they think the fine should be more than fifty 
dollars. 1 [Same as Const. 1834, art. 6, sec. 14; Const. 1796, art. 5, sec. 11.] 

Fine of Over Fifty Dollars—Art. 1, Sec. 16. — BURTON, Sp. J.: “ The 
remaining error insisted on is that the court in these cases violated a 
constitutional provision in imposing a tine of more than fifty dollars 
when the same had not been assessed by the jury. . . . The sub¬ 

stance of this constitutional provision is enacted in sec. 2 5237 of the 
Code. The above provisions are manifestly an amplification of the pro¬ 
vision contained in sec. 16, art. 1, against the imposition of excessive 
fines. The English Bill of Rights particularly declared that excessive 
fines ought not to be imposed which had a retrospect, according to Sir 
Wm. Blackstone, to some unprecedented proceedings in the court of 
king’s bench, in the reign of King James II. The history of this impor¬ 
tant provision renders it plain that it was aimed at the abuse of the 
unlimited power of courts in respect to fines, and was not intended as 
a limitation upon the power of legislation. It is very plain, too, as we 
think, that the provision in our own Constitution that a fine not exceed¬ 
ing fifty dollars can not be imposed unless assessed by a jury refers to 
cases where the court has a discretion in fixing the amount of the fine. 
It can have no application to the case in hand, where the legislature has 
peremptorily fixed the fine at five hundred dollars in every case. This 
court has repeatedly exercised the jurisdiction to declare an act of the 
legislature unconstitutional, but have also recognized the rule that def¬ 
erence to a co-ordinate branch of the government demanded that an act 
of the legislature should not be declared unconstitutional unless it was 
a plain and palpable violation of the fundamental law.” Judge Turney 
dissented. 65, 485. France v. The State. 1873. 


1 See McGhee et al. v. The State, art. 2, sec. 17, p. 286; also 91 , 443. 


2 M. & V., 6078. 



JUSTICES AND CONSTABLES. 


461 


JUSTICES AND CONSTABLES. 


PAGE. 


Term of Justice—Election of Successor_461 

Additional Justices for County Towns — 
Questions for Legislative Determin¬ 
ation . 461 

Term of Justice—Election by Incorporated 

Towns. 462 


PAGE. 

Additional Justices for Incorporated 

Towns. 463 

Jurisdiction of Justices. 463 

Election of Constable—Must be Actual Va¬ 
cancy. 464 


Art. 6, Sec. 15. The different counties of this State shall 
be laid off, as the general assembly may direct, into districts of 
convenient size, so that the whole number in each county shall 
not be more than twenty-five, or four for every one hundred 
square miles. There shall be two justices of the peace and one 
constable elected in each district by the qualified voters therein, 
except districts including county towns, which shall elect three 
justices and two constables. The jurisdiction of said officers 
shall be co-extensive with the county. Justices of the peace 
shall be elected for the term of six and constables for the term 
of two years. Upon the removal of either of said officers from 
the district, in which he was elected, his office shall become 
vacant from the time of such removal. Justices of the peace 
shall be commissioned by the governor. The legislature shall 
have power to provide for the appointment of an additional 
number of the justices of the peace in incorporated towns. 1 
[ Same as Const. 1834, art. 6, sec. 15 ] 

[Const. 1796, Art. 5, Sec. 12: “There shall be justices of the peace 
appointed for each county, not exceeding two for each captain’s company, 
except for the company which includes the county town, which shall not 
exceed three, who shall hold their offices during good behavior.” 2 ] 

Term of Justice — Election of Successor. — CARUTHERS, J., held: 
“So much of the fifteenth section of the Act of 1835, ch. 1, as limits 
the term of a justice elected to fill a vacancy to the remainder of that 
of his predecessor in office is unconstitutional and void. The term of 
office of justices of the peace is fixed by the Constitution, unalterably, 
at six years.” 35 , 7. Keyes v. Mason. 1855. 

Additional Justices for County Towns—Questions to be Determined 
By the Legislature Alone. — On February 3, 1858, the legislature passed 
an act amending the act incorporating Rheatown, Green county, so as to 
empower the citizens of that town to elect one justice of the peace 
and one constable, both of whom were required to live in the corporate 
limits, and giving them the right to exercise all the powers and privi¬ 
leges of other magistrates and constables in said county. The lower 
court held the act invalid. Horace Maynard, Sp. J.: “It is maintained 
that this provision of the Constitution is mandatory to the legislature 
and not enjoining a duty restrictive in its character, and not limiting the 
power, the object being to secure to every neighborhood a domestic tri¬ 
bunal of justice, and to be understood as reading: *There shall be at 
least two justices of the peace and one constable elected,’ etc. This 
view is plausible, and we are not prepared to say it is incorrect. Such 

1 See Fields v. The State, art. 1, sec. 8, p. 29; 32, 70. *See 9, 195. »See 38, 371. 









462 


TENNESSEE CONSTITUTIONAL LAW. 


we find to have been the opinion of several different legislatures, as 
appears from various acts conferring upon different municipal corpora¬ 
tions privileges of the same character, and often identical with those 
conferred by the Statute under consideration upon the citizens of Rhea- 
town. Nothing but a profound conviction would constrain us to pro¬ 
nounce null all such legislation and the acts done in pursuance thereof, 
had we the power. 

“It is but repeating the language of the court to hold that there are 
many provisions of the Constitution, directory, mandatory and prohibi¬ 
tory to the legislature, against the violation of which there is and can 
be no legal protection. Such are the clauses requiring the performance 
of duties imposed upon the legislature itself, and the restriction in the 
performance of these duties. In all these and the like cases the only 
security is to be found in the obligation of the members to support the 
Constitution, and in the ballot box. A court of justice can not compel 
action; it can not prohibit action; it can not undo action. Should the 
legislature, for instance, establish a new county, in violation of the con¬ 
stitutional provisions upon that subject, organize courts and all the 
machinery for the administration of its local affairs, and provide for the 
appointment of justices, sheriff, constables and other county officers, the 
courts, both of equity and law, are powerless to interfere. Or, should 
the legislature, in violation of the clause in the Constitution just quoted, 
lay off a given county into more than twenty-five civil districts, or into 
districts containing less than twenty-five square miles, could the courts 
declare the acts of the supernumerary officials, thus created, to be 
illegal? Certainly not. Such action of the legislature would belong to 
the political and not to the judicial power of the government. So, like¬ 
wise, the act now before us. The holding of the Circuit court, there¬ 
fore, was erroneous.” 42, 16. Britton et al. v. Moody. 1865. 

Justices of the Peace — Term of Office — Election by Incorporated 

Towns—Repeal of Charter—Effects of—Art. 7, Sec. 5—Art. 5, Sec. 5. 

Freeman, J.: “The question is, whether the repeal of the acts of incor¬ 
poration of these towns removes the justices elected, according to the 
above clauses of our Constitution, and the statute providing for this, or 
do they still remain justices for the county for the full term of six 
years? It is settled by our decisions that the legislature had no power 
to abridge the term of office of the justices of the peace, under any 
circumstances, by an affirmative enactment, to a less period than the 
term provided by the Constitution, to wit, six years. 2 Humph., 24; 

9 Humph., 208; 3 Sneed, p. 6. This is so obvious as to need no addi¬ 
tional argument. The Constitution has fixed the term of office at six 
years. It is true a change was made, in one case only, by the Constitu¬ 
tion of 1870, providing that ‘no appointment or election to fill a vacancy 
shall be made for a period extending beyond the unexpired term/ Art. 


JUSTICES AND CONSTABLES. 


463 


7, sec. 5. But this only emphasizes the general rule by a well defined 
exception, which does not include the parties in the present case. . . . 
There are justices’ courts or Circuit courts provided for by the Consti¬ 
tution, only an election or appointment of these officers, and the people 
designated who may elect them. In the case of an incorporated town, 
it is provided the inhabitants shall have the power to elect; when so 
elected, they are then justices of the peace of the county, not of that 
corporation, and have jurisdiction co-extensive with the county. The 
Constitution, then, in imperative terms, provides they shall be elected 
for six years, and they are so commissioned by the governor. They 
must so hold, unless some other provision of the Constitution, by fair 
and reasonable implication, forbids, under prescribed circumstances, or 
authorizes the legislature to remove from office in a shorter period. 

“ By art. 5, sec. 5, of the Constitution, provision is made for ' removal 
of justices of the peace and other civil officers, on conviction for crimes 
and misdemeanors in office, after indictment, and then by the judgment 
of the court, they are to be removed from office, as if found guilty on 
impeachment.’ The logical result that follows from the repeal of the act 
of incorporation of a town, having the power, by virtue of its corporate 
existence, to elect a justice, is not that the justice that has been elected 
shall cease to be a justice of the county, but only that the town for the 
future shall not have the power of election. This is the legitimate 
result of such repeal aud no more. If it had been intended that the 
repeal of the act of incorporation should deprive the justice of his 
office, it would have been easy, and the most natural thing, to have 
added a few words to the clause, authorizing the legislature to provide 
'for the appointment of an additional number of justices of the peace 
in incorporated towns,’ and simply to have said, 'who should only hold 
their offices while said town remained incorporate.’” 84, 487. Cross 
v. Mercer. 1886. 

Additional Justices for Incorporated Towns — Act 1875, Ch. 8.— 
W. A. Henderson, Sp. J.: “ It is undoubtedly competent for the legis¬ 
lature to confer, by special act, the power upon any incorporated town 
to elect a definite number of additional justices. . . . But an ’act 

conferring upon an existing municipal corporation, or upon each of a 
class of such corporations, the power to elect ‘two justices of the peace 
in each ward into which such city may be subdivided,’ is not a constitu¬ 
tional exercise of the legislative power to provide for the appointment 
of additional justices in incorporated towns. Such act constitutes an 
illegal delegation of legislative power to incorporated towns.” Judge 
Lurton dissented. 90, 722. The State ex rel. v. The Nine Justices. 
1891. 


i m. d* V., 393, amended by Acts 1891, ch. 58. 



464 


TENNESSEE CONSTITUTIONAL LAW. 


Justices of the Peace — Jurisdiction — Question Reserved. — BEARD, J., 
held: “A justice of the peace, elected for one civil district of his county,, 
and having his residence there at the time of his election, and continu¬ 
ously thereafter, with an office in that district, where he holds court 
regularly on one day of each week to try such causes as are then 
brought before him, may lawfully open another office in another civil 
district of his county, and there issue writs, try causes, and deliver 
judgments on such days of the week as he is not engaged officially in 
his own district. 1 . . . Whether a justice of the peace does not 

vacate his office when he practically abandons the office he is required 
to keep in his own district for an office that he opens in another district.” 
94, 668. Strain v. Hefley. 1895. 

Election of Constable — Must be an Actual Vacancy. — McKlNNEY, J. : 
^ It is too clear to admit of any serious question that the vacancy con¬ 
templated by the Constitution and by the statute passed in pursuance 
thereof, is an actual, present vacancy in the office, not a contingent or 
prospective vacancy; a vacancy that has already occurred, by death, 
removal, or resignation; vacancies occurring in either way are all in the 
same category; and an election in advance, in anticipation of a vacancy 
to occur in future by resignation, is no more allowable than would be an 
election in advance to fill an anticipated vacancy in future by the death 
or removal of the incumbent.” 36, 294. Clemmens v. Cato. 1856. 

1 T. & S., 4113, 4127, 4128; M. & V., 4888, 4902, 4903. 2 T. & S., 400; M. & V., 457. 



VACANCY IN OFFICE. 


4f>5 


ARTICLE VII. 


STATE AND COUNTY OFFICERS. 

Article 7, Section 1. There shall be elected in each county, 
by the qualified voters therein, one sheriff, one trustee, one regis¬ 
ter—the sheriff and trustee for two years, and the register for four 
years; but no person shall be eligible to the office of sheriff more 
than six years in any term of eight years. There shall be elected 
for each county, by the justices of the peace, one coroner and one 
ranger, who shall hold their offices for two years. Said officers 
shall be removed for malfeasance or neglect of duty, in such 

manner as may be prescribed by law. 1 [Same as Const. 1834, art. 7, 
sec. 1.] 

[Const. 1796, Art. 6, Sec. 1. “There shall be appointed in each county, 
by the County court, one sheriff, one coroner, one trustee, and a sufficient 
number of constables, who shall hold their offices for two years. They shall 
also have power to appoint one register and ranger for the county, who shall 
hold their offices during good behavior. The sheriff and coroner shall be com¬ 
missioned by the governor.”! 

Sheriff—Official Term—Art. 6, Sec. 15.— McKlNNEY, J.: “It is said 
for the defendants that, in law, Parchmen was not sheriff at the date of 
the issuance of the execution, namely, on the 11th day of March, 1856; 
that, under the Constitution ( 2 art. 6, sec. 15), the term must be held to 
commence from the day of the election, which, in this particular instance, 
was on the 4th day of March, 1854, and consequently the official term 
had expired before the day of issuance of said execution. This position 
is not tenable. The Constitution simply prescribes the mode of appoint¬ 
ment and the duration of the term. The time and manner of qualifica¬ 
tion are left to be regulated by the legislature.” 40, 613. The State 
for use etc. v. Parchmen. 1859. 


VACANCY IN OFFICE. 


PAGE. 


Vacancy—Full Constitutional Term. 465 

Act Creating Board of County Commission¬ 
ers, Void—Quarterly Court—History 
of—Act to Abolish it—Quasi Corpo¬ 
rate Communities. 466 


PAGE. 

Vacancy in Office of County Court Clerk to 
be Filled by the Court—Legislature 
May Say Who Shall Constitute the 
Court—This Clause Construed.470 


Art. 7, Sec. 2. Should a vacancy occur subsequent to an 
election in the office of sheriff’, trustee, or register, it shall be 
filled by the justices; if in that of the clerk to be elected by the 
people, it shall be filled by the courts; and the person so 
appointed shall continue in office until his successor shall be 
elected and qualified; and such office shall be filled by the quali¬ 
fied voters at the first election for any of the county officers, 
f Same as Const. 1834, art. 7, sec. 2.J 

Vacancy—Full Constitutional Term. — GREEN, J., held: “Under the 
Constitution of 1834 the register or other county officer elected at the first 
election for any of the county officers held after the occurrence of a 


* See The State v. Glenn, art. 6, sec. 4, p. 429; Tatum r. Rivers, art. 7, sec. 5, p. 476. 
a See M. & V.,1016etse<]. 


30 







466 


TENNESSEE CONSTITUTIONAL LAW. 


vacancy, is entitled to the office for the fall constitutional term, and not 
merely to the end of the term in which the vacancy has occurred.” 21, 
24. Powers v. Hurst. 1840. 

Act Creating Board of County Commissioners Void—Quarterly Court 
—Its History—Act to Abolish it—Quasi Corporate Communities—Law of 
the Land.— The act under consideration was that of March 12, 1868, 
ch. 65, to create a board of commissioners for the county of Madison, 
extended by the fifteenth section to the county of White, conferring on 
such commissioners appointed by the governor the powers of the justices 
of the Quarterly courts. Freeman, J.: “The first question presented 
for our consideration is, whether the legislature had the constitutional 
power to do this. And the next is, whether it could be done in the 
mode attempted; that is, by an exceptional enactment, applicable to 
one or more counties, and not by a general law, applicable alike to all 
the counties of the State, or operating equally and alike over the whole 
territory of Tennessee—in other words, is this the law of the land, 
within the meaning of the Constitution ? 

“On the first question there is some difficulty in arriving at a satis¬ 
factory conclusion. The County court, or Quarterly court, or court of 
pleas and quarterly sessions, was part and parcel of the organized 
machinery of our State government at the adoption of the Constitution 
of 1834, and had been of the State of North Carolina before the adop¬ 
tion and formation of our original Constitution of government of 1796. 
By the Constitution of 1796, art. 6, it is provided: ‘There shall be 
appointed in each county, by the County court, one sheriff, one coroner, 
one trustee, and a sufficient number of constables, who shall hold their 
offices for two years. They shall also have power to appoint one regis¬ 
ter and one ranger for the county, who shall hold their offices during 
good behavior/ By art. 5, sec. 12, it is provided that ‘justices of the 
peace shall be appointed for each county/ and their number was limited 
to two for each captain's compauy, except for the company that includes 
the county town, and in this they should not exceed three. Yet we find 
in this Constitution no provision establishing such a court. It is simply 
recognized and treated as one of the existing institutions of the State, 
well known, and therefore referred to simply as the ‘County court/ 
This institution continued among us down to the time of the formation 
of the Constitution of 1834; and so far as we can learn from the history 
of that period, no complaint had ever been made of it—no wish had 
been expressed by any one to get clear of it or to alter or abolish the 
system of arrangements of which it was a part, nor to substitute any 
thing in its stead. We can not learn that the convention of 1834 had 
any purpose to abolish it, or had any proposition submitted to it looking 
to such an end. We may safely affirm that if such proposition had been 
presented it would have been promptly rejected. That convention had 


VACANCY IN OFFICE. 


467 


in it much of the best talent of the State, and lawyers whose learning 
and thorough acquaintance with the machinery of our State government 
have not been excelled by any who have lived in the State. In arriving 
at a correct conclusion as to what the Constitution intended to estab¬ 
lish, and what to abolish, or its true intent and meaning on questions 
such as are involved in this case, in the language of Judge Denio, in 
delivering the opinion of a majority of the court of appeals in the case 
of The People v. Draper, 15 N. Y. Rep., 537, 1 we must keep in mind that 
the Constitution was not framed for a people entering into a political 
society for the first time, but for a community already organized and 
furnished with legal and political institutions adapted to all, or nearly 
all, the purposes of civil government, and that it was not intended to 
abolish these institutions except so far as they were repugnant to the 
Constitution then framed.’ 

‘‘We may assume the proposition to be a correct one, that the intent 
and meaning of the Constitution, when arrived at in accordance with 
established principles of construction, is the supreme law of the land to 
our legislature, and that the legislature has plenary legislative—that is, 
the law-making—power except in so far as they are restrained by the 
Constitution of the State or of the United States. The prohibition to 
exercise a particular power, or make a particular enactment, need not 
be expressed, however, but may be implied. And that such an impli¬ 
cation would fairly arise when we can see from the Constitution that 
certain arrangements therein provided for, or certain institutions, or 
parts of the existing organization of the State, are referred to as being 
the agencies charged with the performance of certain duties by the 
terms of that instrument, and that the existence of these agencies was 
contemplated as continuing, and was thus, however remotely recognized 
by the Constitution, that such reference would amount to a fairly implied 
constitutional establishment of, or at any rate, recognition of, and contin¬ 
uance of such existing agencies or organizations. 

‘‘Now, we look at the fact that, by the Constitution of 1796, article 6, 
referred to above, the County court is chargeable with the election of 
certain officers, yet we find no other notice of its organization or estab¬ 
lishment in that instrument. We find, however, that as then recognized, 
it continued in existence as part of the machinery of that well-known, 
settled, and established political and civil division of our State govern¬ 
ment, the county, up to the adoption of the Constitution of 1834, and 
conclude that if such an innovation as the destruction of the County 
court had been contemplated, or if authority had been conferred on the 
legislature to make such change, it would have been plainly conferred 
by express provision. But without insisting on this view as conclusive, 
we may safely and surely look at the Constitution itself, and see in the 
light of the facts existent at the time of its adoption, whether or not in 


468 


TENNESSEE CONSTITUTIONAL LAW. 


that instrument there is by fair inference a recognition of the existence 
and intended perpetuation of the Quarterly or County court. If so, the 
legislature can not abolish it, and supplant it by other agencies, differ¬ 
ently constituted, though charged with the same duties and given the 
same powers. It is provided by art. 6, sec. 15, of the Constitution, that 
the counties of the State shall be laid off into districts of convenient 
size, so that the whole number in each county shall not be more than 
twenty-five; and that there shall be two justices of the peace elected 
for each district including county towns, which shall elect three, etc. 
In art. 7, sec. 1, it is provided among other things, ‘ there shall be elected 
for each county, by the justices of the peace, one coroner and one 
ranger, who shall hold their offices for two years.’ By section 2 of said 
article, ‘should any vacancy occur subsequent to an election in the 
office of sheriff, trustee, or register, it shall be filled by the justices,’ etc. 
It will be seen that the same officers are here to be elected by the ‘jus¬ 
tices of the peace — that is, the coroner and ranger; and, in case of 
vacancy of sheriff, trustee, and register, that were by the Constitution 
of 1796, art. 6, directed to be appointed by the ‘County court.’ It is 
true that the sheriff and county trustee, who were to be appointed by 
the County court by said sixth article, are to be elected by the provision 
of the seventh article, sec. 1, of the Constitution of 1834, by the people, 
except in case of vacancy. Yet we do not see how any one can take 
the two articles together, and the facts existent at the time of the adop¬ 
tion of the Constitution of 1834, and not conclude that the only change 
intended to be made by the convention in art. 6, sec. 1, of 1796, Was, 
that the sheriff and trustee should be elected by the people, but the 
rangers and coroners were to continue to be elected by the justices of 
the peace—that is, by the County or Quarterly court, assembled as has 
been their wont from the foundation of the State; that by ‘justices of 
the peace,’ in art. 7, sec. 1, of the Constitution of 1834, was meant pre¬ 
cisely the same thing as ‘ County court,’ in art. 6, of the Constitution of 
1796. This view of the case is strengthened by the fact that there is no 
provision for their special assemblage for the purpose of performing the 
duty with which they are here charged in the election of these officers; 
and it certainly was not contemplated that their election was to be by 
the justices, each voting or choosing in his separate district, without 
concert with his co-justices of the same county.” 

Judge Freeman then cites the provisions of the various acts on the 
subject, and says: “In these various provisions are certainly contained 
a clear and unequivocal contemporary view of the provisions of the 
Constitution of 1834, recognizing, as one of the constitutionally continu¬ 
ing institutions, existent at the time of its adoption, the assemblage of 
the justices of the peace, in County courts, charged with the election of 
the officers above referred to, and as a matter of course, with other 


VACANCY IN OFFICE. 


469 


duties appertaining to and annexed by law to their assembled organiza¬ 
tion, known as the County court. In other words, the legislature that 
assembled immediately after the adoption of the Constitution of 1834, 
construed that instrument as perpetuating what was known before as 
the County court; and, as recognizing that certain duties were imposed 
on said body by the Constitution, which necessarily implied and 
demanded its continued existence. . . . From this view of the case 
we are led to the conclusion that the Constitution, in the articles cited, 
looked to the continued existence of this assemblage of the justices of 
the peace of the county for the performance of the duties therein 
imposed, and that it was recognized as an assemblage representing the 
corporate existence of that constitutional division of our State known 
as a county; and that this institution, in this aspect of it, must continue 
until abrogated by the action of the people in changing the constitu¬ 
tional provisions referred to. . . . Inasmuch as justices of the 

peace are constitutional officers, and their functions as such well known 
at the time of the adoption of the Constitution of 1834, and as by art. 7, 
secs. 1 and 2, taken in connection with the established order of things 
at the time, and contemporaneous construction by the legislature of 
1835 and 1836, together with the uniform understanding of all depart¬ 
ments of the government from 1834 to the passage of the acts, or class 
of acts in question, the assemblage of the Quarterly or County court of 
each county; as the quasi representatives of the counties, as corporate 
or quasi corporate communities, is, as we think, most clearly recognized 
and necessary for the performance of the duties imposed in the Consti¬ 
tution; that no legislature of Tennessee, or any body short of a consti¬ 
tutional convention, can change or alter or abolish this established order 
of things. This having been attempted in this case, and the law having 
no other purpose, if this purpose fails, the whole law must be treated as 
a nullity and declared void. We do not mean in this opinion to adjudge 
or decide any thing upon the question of the organization of special 
courts, or of tribunals, of any kind in counties, such as special criminal 
courts, but to confine this opinion to the simple question of the power 
of the legislature to overturn the local government, so to speak, of a 
county, displace the assemblage of the recognized organization repre¬ 
senting the county, to whom duties are assigned by the Constitution, 
and place in its stead other organizations, unknown to our past history 
up to the passage of the law of which the Act of 1868 is a part, and 
never contemplated by the Constitution, nor purposed or provided for 
in that instrument. . . . The first thing that strikes us on looking 

at this strange enactment of the legislature, is its startling novelty, as 
compared with any thing that ever existed under our Constitution from 
the organization of the State to the date of the act. In the second 
place, we remark that all the presumptions arising from a past history 


470 


TENNESSEE CONSTITUTIONAL LAW. 


of about seventy years, without ever having been once suggested by 
any legislative body, rise up against the idea that such an organization 
or body was ever contemplated by our fathers, who made the Constitu¬ 
tion under which this act was passed. That taxation and representation 
necessarily go together, was and should be an axiom in our government; 
and if there is any matter upon which we can say that our people were 
sensitive at the adoption of our Constitution, above all others, it was 
the question how, and by what power, the taxes they were to pay 
should be imposed; and that a strict responsibility should attach to 
those who did impose them. ... It will be seen that all the powers 
of taxation for county purposes, formerly exercised by the Quarterly 
courts, who were elected by the people and responsible to them — who 
occupied the position of representative in fact, practically, though per¬ 
haps not in theory, is by these enactments transferred to these commis¬ 
sioners, and they appointed by the governor of the State—it is true, 
after a while to be elected by the people—but the defendants to this 
bill hold the tenure of their offices by virtue alone of the will of the 
governor of the State. Can it be believed for a moment that the power 
was ever intended to be delegated by the people to the legislature to 
authorize such a body, so appointed and constituted, to perform the 
functions assigned to them in this act? We think no reasonable man 
can come to such a conclusion. 

“Another view of this question: Here is a power to take from the 
people their property by taxation, by which they may be destroyed, or 
burdened with burdens too grievous to be borne; and that by a special 
enactment, applicable only to a few counties, which are either made the 
special recipients of this favor by the legislature or the special objects 
for imposition of these burdens, as it may happen to be viewed. This 
is not, then, upon sound principle, in any sense a law of the land; and 
yet it, by and through the agencies put in operation by it, deprives the 
people of their property at the will of men appointed by the governor 
of the State. We think this view of the question conclusive as to the 
unconstitutionality of this law, and upon this last ground would be bound 
to hold it not a Maw of the land/ and therefore of no validity.” 50, 683. 
'Pope v. Phifer et al. 1871. 

Clerk of County Court—Vacancy—How Filled—Clause Construed.— 
McFarland, J.: “The question is the meaning of the language, ‘that if 
a vacancy occur in the office of clerk to be elected by the people, it shall 
be tilled by the court/ Clerks of the County court are elected by the 
people, under previous article of the Constitution, and therefore the 
clause quoted includes county clerks. But inasmuch as the court is 
sometimes composed of the justices and sometimes of the judge, the 


1 See same case, art 2, sec. 2, p. 263. 



VACANCY IN OFFICE. 


471 


question is, which shall exercise this particular power? The Constitution 
only provides the general rule, that is to say, the vacancy shall be tilled 
by the court; but as the County court was one of the inferior courts 
which the legislature might ordain and establish, it results that the 
legislature might change the constituents of the court and regulate or 
change its jurisdiction, or in other words, might provide, as it did so, 
that for some purposes all or a majority of the justices should be present, 
for other purposes three were sufficient, and finally that the powers and 
jurisdiction formerly exercised by the three justices should be trans¬ 
ferred to the county judge. In other words, while the legislature could 
not change the general rule of the Constitution, ‘that the vacancy should 
be filled by the court/ it might, nevertheless, say who should constitute 
the court for one purpose and who for another. This principle is settled 
in the case of The State v. Turk, decided in 1827. The Constitution of 
1796 had this clause: ‘Each court may appoint its own clerk, who may 
hold the office during good behavior.’ The legislature in the same year 
passed an ’act that where any vacancy occurred to be filled by the 
county court, the court should hold au open, free election, and public 
notice should be given. In the case referred to this was held to apply 
to vacancies in the office of county clerk, and further, that the Constitu¬ 
tion only provided the general rule, ‘that the clerks were to be appointed 
by the court/ and that it was competent for the legislature to regulate 
the mode of exercising the power, and that in exercising the power of 
appointment given by the Constitution, the legislature had required that 
the court should hold an election and give the public notice. The clause 
of the Constitutions of 1834 and 1870, in regard to filling the vacancy, is 
similar to the clause of 1796 in regard to tilling the office by appoint¬ 
ment in the first instance. So that it was competent for the legislature, 
either under the Constitution of 1834 or 1870, to provide that this power 
of filling the vacancy, conferred by the Constitution upon the court, 
should be exercised in any mode the law-making power might deem 
proper, or that for the exercise of this power all the justices should be 
present, or any given number, or that the power might be exercised by 
the judge.” 76 , 79. The State ex rel. Johnson v. Campbell. 1881. 

Art. 7, Sec. 3. There shall be a treasurer or treasurers 
(and a comptroller of the treasury) appointed for the State by 
the vote of both houses of the general assembly, who shall hold 
their offices for two years. 2 [Const. 1834, art. 7, sec. 3, did not contain 
provision in parenthesis.] 

[Const. 17%, Art. 6, Sec. 2: “There shall be a treasurer or treasurers 
appointed for the State who shall hold his or their offices for two years.’’] 


1 T. A S., 819; M. A V., 1013; Shan. Sup. to M. A V., p. 91. 


* See 55. 332. 



472 


TENNESSEE CONSTITUTIONAL LAW. 


OFFICERS AND VACANCIES. 

Art. 7, Sec. 4. The election of all officers and the filling of 
all vacancies not otherwise directed or provided by this Consti¬ 
tution shall be made in such manner as the legislature shall 
direct. 

[Const. 1834, Art. 7, Sec. 4: “The election of all officers and the filling 
of all vacancies that may happen by death, resignation or removal, not 
otherwise directed or provided for by this Constitution, shall be made in 
such manner as the legislature shall direct.”J 

[Const. 1796, Art. 6, Sec. 3: “The appointment of all officers not other¬ 
wise directed by this Constitution shall be vested in the legislature.”] 

Chancellor—Vacancy—Appointment by Governor. — BURTON, Sp. J.: 
“The Constitution of 1870 was not a new Constitution, but in all its main 
features was a re-enactment of the Constitution of 1834. The same 
articles and sections are common to both instruments, with the excep¬ 
tion of a few, though very important, amendments. Two of these sec¬ 
tions have an important bearing on the question under discussion. Art. 
7, sec. 4, of the Constitution of 1834 is . . . identical with the cor¬ 

responding section in the Constitution of 1870, except that the phrase 
‘that may happen by death, resignation or removal/ is omitted. Sec. 1, 
art. 11, of the Constitution of 1834 is ‘ all laws and ordinances now in 
force and use in this State, not inconsistent with this Constitution, shall 
continue in force and use until they shall expire, or be altered or repealed 
by this legislature.’ The corresponding section of the Constitution of 
1870 is in the same words, with the addition, however, of a clause irrel¬ 
evant to this discussion. By an Act of 1853, ch. 32, secs. 6 and 7, the 
legislature directed how these vacancies should be filled. The substance 
of this act is brought forward in sections 312, 313, 314 and 315 of the 
Code. 2 The three first sections provide that the governor shall order an 
election, prescribe the notice to be given and the manner of giving it. 
Section 315 is in these words: ‘In the meantime the governor shall 
appoint a suitable person to fill the office until the election of a suc¬ 
cessor.’ Was this law in force and use on the 25th day of July, 1871, 
when Goodpasture was appointed the second time? Clearly it was, 
unless it was inconsistent with the Constitution of 1870, for it had not 
expired or been altered by the legislature. 

“It is argued, however, that section 315 of the Code is repealed by 
the paragraph of sec. 5, art. 7, already quoted, which provides, in sub¬ 
stance, that no special election shall be held to fill a vacancy in the 
office of judge except at the next biennial election of civil officers, 
occurring more than thirty days after the vacancy. These paragraphs 
are clearly prohibitory in their nature, and being paramount to any leg¬ 
islative enactment did repeal so much of section 315 as authorized the 
governor to order a special election for judge at a time other than the 


2 M. & V.,348. 



OFFICERS AND VACANCIES. 


473 


biennial election of civil officers. But these clauses do not conflict with 
the legislative provision that vacancies shall be tilled by appointment of 
the governor, for the time intervening between the vacancy and the 
election held to till it. The utmost that it does is to alter the time at 
which the governor shall cause the election to be held, nor is it easy to 
see how this restriction as to the time of holding the election can be 
construed into a repeal of a power of the executive to fill vacancies by 
appointment. 

“The constitutional and legislative provisions can stand together, 
the former modifying the latter only in prescribing a definite time for 
holding an election under its provisions.” 61,238. 'Gold v. Fite. 1872. 

Municipal Corporations — Appointment and Election of Officers — 
Appointments by Governor are Provisional. — COOPER, J.: “The Act of 
1879, ch. 11, confers the legislative power of the new municipal govern¬ 
ment, designated the taxing district, upon a ‘legislative council/con¬ 
sisting of commissioners of the tire and police board, three in number, 
aud the supervisors of the board of public works, five in number, and 
clothes one of the commissioners with the necessary executive and 
judicial authority. Two of the commissioners are appointed by the gov¬ 
ernor, with the consent of the senate, and the third is elected by the 
qualified voters of the taxing district. One of the supervisors is 
appointed by the governor, with the consent aud advice of the senate, 
one by the Quarterly court, and the other three are elected by the qual¬ 
ified voters of the taxing district. All of the commissioners and super¬ 
visors hold office for two years, and at the expiration of the first term 
are all to be elected by the qualified voters of the corporation. It will 
thus be seen that for the first two years the people of the. district elect 
one-half of the governing body directly, aud have a will indirectly in 
the appointment of the other half through the governor, the members 
of the legislature and the justices of the Quarterly court, all of whom 
are elected by the people. The election of all officers, it should be 
borne in mind, and the filling of all vacancies, not otherwise directed or 
provided by the Constitution, are expressly entrusted to the direction of 
the legislature. Const., art. 7, sec. 4. And the power may be delegated 
to the County court in the case of county officers. Const., art. 11, sec. 
17. After the first two years the people elect the entire governing body 
directly, vacancies alone being filled by the Quarterly court. At most, 
the departure from democratic usage is only partial and limited to a 
period of two years. Even if all of the governing body had been 
appointed by the legislature, or the governor with the consent of the 
senate, or by the County court, the popular repi esentation in the elec¬ 
tion of the appointing power would perhaps have been sufficient to meet 

1 See same case, schedule sec. 1, clause 2. 



474 


TENNESSEE CONSTITUTIONAL LAW. 


the requirements of our republican institutions in the absence of express 
constitutional directions to the contrary. It has been so held by some 
courts. People v. Mahaney, 13 Mich., 500. A fortiori, where one-half 
of the governing body is elected by the people and the other half 
appointed by the people’s servants. But the appointment of one-half 
of the governing body is expressly temporary and provisional. At the 
expiration of the first term all of the members are to be elected by the 
people. 

“The question is therefore narrowed down to this: Does the pro¬ 
visional organization of a municipal corporation, in a mode not admissi¬ 
ble as a permanent form, render the act creating the corporation void T 
Thus put, there can be only one answer. Our own statutes contain 
numerous instances where public corporations, counties and towns have 
been organized and put into operation by commissioners appointed by 
the legislature or the governor. And Judge Cooley, in a well-considered 
case, while expressing a doubt whether the legislature could constitu¬ 
tionally appoint for a municipal corporation in his State, where the 
Constitution contained express provision for their local appointment 
officers whose duties were exclusively local, such as a board of water 
or sewer commissioners, yet held that it was entirely competent for 
that body to make provisional appointment of such commissioners to 
put the new system in motion. ‘It corresponds/ he says, ‘to the 
authority which constitutional conventions sometimes find it needful to 
exercise, when they prescribe the agencies by means of which the new 
Constitution they adopt is to be made to displace the old.’ People v. 
Hurlburt, 24 Mich., 44. The provisional term of two years can not be 
deemed unreasonable in this instance, in view of the direct popular rep¬ 
resentation in the provisional body. Conceding, then, that it may admit 
of doubt whether the legislature could permanently appoint, under our 
Constitution and the democratic character of our institutions, the officers 
and governing body of a municipal corporation, its right to make pro¬ 
visional appointments is beyond doubt. The appointment in contro¬ 
versy are, therefore, within the competency of the legislature.” Free¬ 
man, J., and Turney, J., dissented. 70 , 439. 1 Luehrman v. Taxing 
District of Shelby County. 1879. 


See same case, art. 2, sec. 17, p. 280; art. 2, sec. 29, p. 355; art. 11, sec. 8. 



TERMS OF CIVIL OFFICERS. 


475 


TERMS OF CIVIL OFFICERS. 


Terms of Office. 

Organic Provisions Relating to this Sub- 


PAGE. 
.. 475 


Public Administrator—Election and Quali¬ 
fication of Successor. 


PAGE. 


477 


ject—Term of Register 


476 


County Judge—Term of Office—Is Judge of 
Inferior Court. 


Constable—Vacancy in Office—How Filled. 477 


477 


Art. 7, Sec. 5. Elections for judicial and other civil officers 
shall be held on the first Thursday in August, one thousand 
eight hundred and seventy, and forever thereafter on the first 
Thursday in August next preceding the expiration of their 
respective terms of service. The term of each officer so elected 
shall be computed from the first day of September next succeed¬ 
ing his election. The term of office of governor and other 
executive officers shall be computed from the 15th of January 
next after the election of the governor. No appointment or 
election to fill a vacancy shall be made for a period extending 
beyond the unexpired term. Every officer shall hold his office 
until his successor is elected or appointed and qualified. No 
special election shall be held to fill a vacancy in the office of 
judge or district attorney, but at the time herein fixed for the 
biennial election of civil officers; and such vacancy shall be filled 
at the next biennial election recurring more than thirty days 
after the vacancy occurs. 

[Const. 1834, Art. 6, Sec. 5: “ Tbe legislature shall provide that the elec¬ 
tion of the county and other officers by the people shall not take place at the 
same time that the general elections are held for members of congress, mem¬ 
bers of legislature, and governor. The elections shall commence and ter¬ 
minate on the same day.”] 


Terms of Office. — Nicholson, J.: “These officers elected in May, 
1870, are to hold their offices for the terms fixed by the Constitution. 
The fact that the terms of those elected in August, 1870, are fixed to com¬ 
mence on the first of September, 1870, while those elected in May, 1870, 
are not included in that provision, furnishes conclusive evidence that it 
was not intended that their terms should be postponed until that time, 
but that they were intended to hold their offices from the date of their 
election in May, 1870. It follows that Judge HeiskelFs term of office 
commenced from his election and commission in May, 1870. He was, 
therefore, a legal and constitutional judge in July, 1870, when he pre¬ 
sided on the trial of the cause now before us. If it should be asked 
when his term of office will expire, the answer is, that his term is com¬ 
puted from the first of September, 1870, and will continue for eight 
years from that date; and until his successor shall be elected and qual¬ 
ified. It results in giving to the officers elected in May, 1870, somewhat 
longer terms than those elected in August, 1870. But this was unavoid¬ 
able in changing the times of the elections, and in providing against any 
interregnum in any of the offices.” 56, 803. 1 Brinkley v. Bedford. 


1872. 


1 See same case. art. 11, sec. 1; Schedule, sec. 1, clause 1. 








476 


TENNESSEE CONSTITUTIONAL LAW. 


Organic Provisions Relating to This Subject — Term of Register. 
Nicholson, J.: “B. F. Tatum was elected register of Fayette county at 
the election for county officers, held on the 26th of March, 1870, and was 
inducted into office on the 5th of April, 1870. In October, 1871, B. F. 
Tatum died, and his son, E. W. Tatum, was appointed to till the vacancy. 
At the regular election, in August, 1872, W. J. Rivers was elected register 
for Fayette county to fill out the unexpired term, and at the September 
term, 1872, of the County court, he presented his certificate of election, 
and his bond, and claimed to be inducted into the office. His right to 
the office was contested by E. W. Tatum, who claimed that his term, 
under the appointment of the County court, had not expired. The 
County court determined that Rivers was entitled to be inducted into 
the office. From this judgment Tatum appealed to the Circuit court, 
where the judgment was affirmed, and Tatum has appealed to this 
court. County registers are to be elected for four years. Const., art. 7, 
sec. 1. When a vacancy occurs subsequent to an election, it shall be 
filled by the justices, and the person so appointed shall continue in 
office until his successor shall be elected and qualified. Art. 7, sec. 2. 
Elections for judicial and other civil officers shall be held on the first 
Thursday in August, 1870, and forever thereafter on the first Thursday 
in August next preceding the expiration of their respective terms of 
service. Art. 7, sec. 5, par. 1. 

“ The term of each officer so elected shall be computed from the 1st 
day of September next succeeding his election. ... No appoint¬ 
ment or election to fill a vacancy shall be made for a period extending 
beyond the unexpired term. . . . Every officer shall hold his office 

until his successor is elected, or appointed, or qualified. Art. 7, sec. 5, 
par. 2. These are the permanent organic provisions made to reg¬ 
ulate the election of registers, to fix their term of office and to provide 
for filling vacancies. 

“The convention closed its session on the 23d of February, 1870. 
The general election for county officers was fixed by the legislature for 
the 26th of March, 1870, and the convention, by ordinance, fixed the 
26th of March, 1870, for taking the vote of the people on the ratifica¬ 
tion or rejection of the new Constitution. According to the permanent 
provisions of the Constitution, the regular election for judicial and other 
civil officers was fixed for the first Thursday in August; but the regular 
election for civil officers other than judicial under the Constitution of 
1834, was fixed by the legislature for the 26th of March, 1870. In order 
to prevent any inconvenience from a change of the Constitution, a 
schedule was attached thereto, which provided that the governor of the 
State, the members of the general assembly, and all officers elected at 
or after the general election of March, 1870, shall hold their offices for 
the terms prescribed in this Constitution. Under this provision of the 


TERMS OF CIVIL OFFICERS. 


477 


schedule a register elected at the general election on the 25th of March, 
1870, would hold his office for the term prescribed in the Constitution, 
that is, for four years, as prescribed in art. 7, sec. 1: and the term of 
the register’s office to be computed from the 1st day of September next 
succeeding his election on the 26th of March, 1870, as prescribed in art. 
7, sec. 5, par. 2. The necessary result of these provisions was to 
give more than four years to the registers elected on the 26th of March, 
1870, and this was the intended effect of the schedule adopted to avoid 
any inconvenience from the change of the Constitution. It follows that 
if B. F. Tatum had lived, his term of office would have expired at the 
end of four years from the 1st of September, 1870. As he died in Octo¬ 
ber, 1871, E. W. Tatum appointed to fill the vacancy, was only entitled 
to hold the office until the 1st of September, 1872. The election of 
Rivers in August, 1872, was valid and constitutional, and he was entitled 
to be inducted into office by the County court in September, 1872.” 
66, 296. Tatum v. Rivers. 1874. 

Constable—Vacancy in Office—How Filled. — COOPER, J., held : “ Upon 
the happening of a vacancy in the office of constable the sheriff may, 
since the adoption of the Constitution of 1870, as before, hold an elec¬ 
tion, under the Code, sec. 401, 1 to fill the vacancy, and the election may 
be held on the same day and at the same time with the general election 
for the governor of the State and members of the general assembly.” 
69, 461. Beazley v. Ferris. 1878. 

Public Administrator — Election and Qualification of Successor.— 
Freeman, J., held: “Where a public administrator was elected at the 
October term of the court, instead of the April term, when his prior 
term regularly expired, the election was valid and proper, the duty of 
the court to elect being a continuing one.” In deciding this case he 
said: “It is probable the provision added to the Constitution of 1870, 
art. 7, sec. 5, 1 that every officer shall hold his office until his successor 
shall be elected, or appointed and qualified,’ was intended to meet such 
a case thus continuing the former officer in office and lengthening his 
term. In that view the implication is clear that ‘an election or appoint¬ 
ment ’ after the regular period, is necessarily contemplated and recog¬ 
nized by the Constitution. So we held in the case of the clerk of the 
Supreme court at Knoxville, whose term expired in September, but 
owing to the change made some years since in the time of holding that 
court, the court did not meet until the next year, when he was re¬ 
elected, and held for six years from the last election.” 2 84, 324. The 
State for use etc. v. Anderson et al. 1886. 

County Judge — Term of Office—Is Judge of “Inferior” Court- 
Vacancy.— A county judgeship for Knox county was created by Acts 


1 M. & V., 45K. 


a M. & V., 547. 



478 


TENNESSEE CONSTITUTIONAL LAW. 


1887, chapter 148, and the term of office fixed, by the statute, at four 
years. Maloney was elected in 1888 to fill said office for said term. In 
1892 Rambo was elected as his successor. Maloney refused to surren¬ 
der the office upon Rambo’s demand, and insisted that he was entitled 
to hold the office for the full term of eight years allotted to judges of 
‘inferior courts’ by the Constitution. Rambo brought this suit to oust 
Maloney. 

Caldwell, J., held: “Maloney’s term expires, under Constitution of 
1870, on 1st of September, 1894. The statute is unconstitutional and 
void, so far as it undertakes to fix the term at four years. Maloney 
holds, not for a full term of eight years from date of his election, but 
only for the unexpired judicial term—viz., six years. A county judge 
is a judge of an inferior court within the meaning of those clauses of 
the Constitution which authorize the creation of ‘other inferior courts’ 
in addition to those specifically named, and provide for election of 
judges for said courts, and prescribe their terms of office at eight years. 
The judicial term is uniform under Constitution of 1870, the first term 
beginning 1st of September, 1870, and ending 1st of September, 1878, 
and a new term beginning at the latter date, and at the expiration of 
each succeeding term of eight years thereafter. Vacancies occurring 
during a judicial term are filled, not for a full term of eight years from 
the date of occurrence, but for the unexpired judicial term. A county 
judgeship created during a judicial term, is, in legal contemplation, a 
vacancy, and filled as such.” 

In delivering the opinion Judge Caldwell in speaking of this clause 
said: “By these provisions a new era in the political history of the 
State is established. A certain day is named, from which all official life 
thereafter shall be reckoned. Absolute uniformity in the time for the 
commencement and termination of every official term of officers of the 
same grade throughout the State is positively ordained. Though such 
uniformity had been of but small moment under the Constitution of 
1834, it is now made paramount. . . . The language, ‘no appoint¬ 

ment or election to fill a vacancy shall be made for a period extending 
beyond the unexpired term,’ was introduced into the Constitution of 
1870 to further insure uniformity in the official terms of officers of the 
same grade by affirmatively altering the rule existing under the Consti¬ 
tution of 1834. It applies equally to cases where the appointment or 
election may be made to fill an office for the first time, and where it 
may be made to fill one whose previous incumbent has died, resigned, 
or been removed.” 92, 1G2. The State ex rel. Rambo v. Maloney. 1892. 


THE MILITIA. 


479 


ARTICLE VIII. 

THE MILITIA. 


Article 8, Section 1. All militia officers shall be elected 
by persons subject to military duty within the bounds of their 
several companies, battalions, regiments, brigades, anti divisions 
under such rules and regulations as the legislature may, from 
time to time, direct and establish. [Same as Const. 1834, art. 8, sec. 1.] 

[Const. 1796, Art. 7, Sec. 1: “Captains, subalterns, and non-commis¬ 
sioned officers, shall be elected by those citizens in their respective districts 
who are subject to military duty.”] 

|Art. 7, Sec. 2: “ All field officers of the militia shall be elected by those 
citizens in their respective counties who are subject to military duty.”] 

[Art. 7, Sec. 3: “ Brigadier generals shall be elected by the field officers 
of their respective brigades.”] 

[Art. 7, Sec. 4: “Major generals shall be elected by the brigadiers and 
field officers of the respective divisions.”] 


Art. 8, Sec. 2. The governor shall appoint the adjutant 
general and his other staff officers; the major generals, brigadier 
generals, and commanding officers of regiments, shall respect¬ 
ively appoint their staff officers. [Same as Const. 1834, art. 8, sec. 2.] 

[Const. 1796, Art. 7, Sec. 5: “The governor shall appoint the adjutant 
general; the major generals shall appoint their aides; the Drigadier generals 
shall appoint their brigade majors, and the commanding officers of regiments 
their adjutants and quartermasters.”] 

[Art. 7, Sec. 6: “The captains and subalterns of the cavalry shall be 
appointed by the troops enrolled in their respective companies, and the field 
officers of the districts shall be appointed by the said captains and subal¬ 
terns; provided, that whenever any new county is laid off the field officers 
of said cavalry shall appoint the captain and other officers therein pro tempore, 
until the company is filled up and completed, at which time the election of 
the captains and subalterns shall take place as aforesaid.”] 


Art. 8, Sec. 3. The legislature shall pass laws exempting 
citizens belonging to any sect or denomination of religion, the 
tenets of which are known to be opposed to the bearing of arms, 
from attending private and general musters. [Same as Const. 1834, 
art. 8, sec. 3; Const. 1796, art. 7, sec. 7.] 


480 


TENNESSEE CONSTITUTIONAL LAW. 


ARTICLE IX. 

DISQUALIFICATIONS. 

Article 9, Section 1. Whereas, ministers of the gospel are 
by their profession dedicated to God and the care of souls, and 
ought not to be diverted from the great duties of their functions; 
therefore, no minister of the gospel, or priest of any denomina¬ 
tion whatever, shall be eligible to a seat in either house of the 
legislature. [ Same as Const, 1834, art. 9, see. 1; Const. 1796, art. 8, sec. 1.] 

Art. 9, Sec. 2. No person who denies the being of God, or 
a future state of rewards and punishments, shall hold any office 
in the civil department of this State. 1 Same as Const., 1834, art 9, 
sec. 2; Const. 1796, art. 8, sec. 2.] 


DUELS. 

Art. 9, Sec. 3. Any person who shall, after the adoption of 
this Constitution, fight a duel, or knowingly be the bearer of a 
challenge to fight a duel, or send or accept a challenge for that 
purpose, or be an aider or abettor in fighting a duel, shall be 
deprived of the right to hold any office of honor or profit in this 
State, and shall be punished otherwise, in such manner as the 
legislature may prescribe. [Same as Const. 1834, art. 9, sec. 3.] 

Aiding in Duel Outside of State no Disqualification for Office in This 
State.— Bill filed by the State on relation of certain citizens to remove 
the defendant, J. J. Du Bose, from the office of judge of the Criminal 
court of Shelby county. The cause for removal stated in the bill is that 
said Du Bose aided and abetted and acted as second in a duel in Arkansas 
since the adoption of the Constitution of 1870, and was therefore dis¬ 
qualified to enter upon and hold said office. 

Turney, J.: “The convention ordaining and the people adopting the 
Constitution must be presumed to have intended to regulate and govern 
the conduct of those within the State. If there were any doubt of such 
purpose and intention, that doubt is removed by the closing paragraph 
of the article cited, to wit: ‘And shall be punished otherwise, in such 
manner as the legislature may prescribe/ Of course the convention did 
not undertake to clothe the legislature with authority to punish for an 
offense committed in a sister State or a foreign land. Construing the 
article as a whole, we conclude the offense specified is limited by the 
delegation of authority to punish. Each State necessarily has the 
exclusive jurisdiction to try and punish offenders within its territory. 
To fight a duel, to aid and abet in one, to give or bear a challenge in 
Arkansas, is no offense against the laws of Tennessee. Of course, any 
of these acts inaugurated and participated in in this State, to be consum¬ 
mated in another, is a violation of our Constitution and laws, 2 and the 
person so violating is amenable thereto.” 88, 754. The State ex rel. 
Du Bose. 1890. 

1 See 9 , 225, dissenting opinion of Judge Peck ; and Acts 1895, ch. 10, p. 18, permitting 
unbelievers to testify. 

2 M. & V., 4146, 4161. 



NEW COUNTIES AND COUNTY LINES. 


481 


ARTICLE X. 

OATHS —BRIBERY OF ELECTORS —NEW COUNTIES. 

Article 10, Section 1 . Every person who shall be chosen 
or appointed to any office of trust or profit under this Constitu¬ 
tion, or any law made in pursuance thereof, shall, before entering 
upon the duties thereof, take an oath to support the Constitution 
of this State and of the United States and an oath of office. 
[Same as Const. 1X34, art 10, sec. 1.] 

[Const. 1796, Art. 9, Sec. 1: “ That every person who shall be chosen or 
appointed to any office of trust or profit shall’, upon entering upon the execu¬ 
tion thereof, take an oath to support the Constitution of this State, and also 
an oath of office.”1 

Art. 10, Sec. 2. Each member of the senate and house of 
representatives shall, before they proceed to business, take an 
oath or affirmation to support the Constitution of this State (and 

of the United States), and also the following oath: “I,-, 

do solemnly swear (or affirm) that, as a member of this general 
assembly, I will, in all appointments, vote without favor, affection, 
partiality, or prejudice; and that I will not propose or assent to 
any bill, vote, or resolution, which shall appear to me injurious 
to the people, or consent to any act or thing whatever that shall 
have a tendency to lessen or abridge their rights and privileges 
as declared by the Constitution of this State.” [Same as Const. 1834, 
art. 10, sec. 2. Const. 1796, art. 9, sec. 2, did not contain the words in first 
parenthesis, but was otherwise the same.] 

Art. 10, Sec. 3. Any elector who shall receive any gift or 
reward for his vote, in meat, drink, money, or otherwise, shall 
suffer such punishment as the laws shall direct; and any person 
who shall directly or indirectly give, promise, or bestow any such 
reward to be elected, shall thereby be rendered incapable for six 
years to serve in the office for which he was elected, and be sub¬ 
ject to such further punishment as the legislature shall direct. 
[Same as Const. 1X34, art. 10, sec. 3. Const. 17%, art. 9, sec. 8, read “two” 
instead of “ six ” years.J 

NEW COUNTIES AND COUNTY LINES. 


Creating and Reducing—Square and 
Eleven-Mile Clauses. 

page. 

County Not Containing Constitutional 

Number of Square Miles. 483 

Objects of Eleven-mile Clause — Construed 

as Prohibitory. 484 

County a Public Corporation — County 
Court — Legislative Power — Juris- 
diction of Chancery Court in Suit 
Between Counties Where Territory 

is in Dispute. 485 

Old County Must be Measured. 488 

New County—Straight Line Rule. 488 

Jurisdiction of Chancery Court Over Coun¬ 
ties . 489 

County Not Estopped by Lapse of Time— 

Publication of Act. 489 


Reduction of Area—Lost Territory Power 

of Legislature to Restore. 489 

Affirmative Consent of Two-thirds of Voters 

Required. 489 

Eleven-mile Clause —Old Doctrine Reaf- 

firmed—Acts 1889, Ch. 194. 490 


County Territory—Legislative Restrictions 

as to Dividing Counties. 4% 

Liability of Old and New County for Debts 

of Old County. 491 

old Counties—Tax Assessors for Fractions 

Thereof. 49 “ 


Creating and Reducing — Square and 
Eleven-Mile Clauses. 

PAGE. 

Change in Boundary — Right of Trial in 
County Having Present Jurisdiction 
of Place Where Offense was Com¬ 


mitted—Personal Right. 82 

Abolishment of Counties. 

Power of Chancery Court to Abolish New 

County. 493 


Legislature Has no Power to Abolish and 
Partition County—How this Must 
be Done a Doubtful Question— 
County a Government Within a 
Government. 493 

Removal of County Seat — Concurrence 
and Consent of Voters. 

Self-operative Clause of this Section—Con¬ 
currence Defined. 495 

Legislature Can Not Remove County Seat.. 4% 
Bv Vote Equal to Two-thirds of Previous 

Vote. 496 

Ascertainment of Popular Desire and Act 

of Removal Must be at Same Time. 497 

Must be Active Concurrence—Not Passive 

Acquiescence. 497 

Sent of Justice—Special Court—This Clause 

Construed. 498 


81 























482 


TENNESSEE CONSTITUTIONAL LAW. 


Art. 10, Sec. 4. New counties may be established by the 
legislature, to consist of not less than two hundred and seventy- 
five square miles, and which shall contain a population of seven 
hundred qualified voters. No line of such county shall approach 
the court house of any old county from which it may be taken 
nearer than eleven miles, nor shall said old county be reduced 
to less than five hundred square miles; but the following excep¬ 
tions are made to the foregoing provisions, viz.: New counties 
may be established by the present or any succeeding legislature 
out of the following territory, to wit: Out of that portion of 
Obion county which lies west of the low-water mark of Reelfoot 
lake; out of fractions of Sumner, Macon, and Smith counties, but 
no line of such new county shall approach the court house of 
Sumner or Smith counties nearer than ten miles, nor include 
any part of Macon county lying within nine and one-half miles 
of the court house of said county, nor shall more than twenty 
square miles of Macon county, nor any part of Sumner county 
lying due west of the western boundary of Macon county, be 
taken in the formation of said new county; out of fractions of 
Grainger and Jefferson counties, but no line of such new county 
shall include any part of Grainger county north of Holston 
river, nor shall any line thereof approach the court house of 
Jefferson county nearer than eleven miles (such new county may 
include any other territory which is not excluded by any general 
provisions of this Constitution); out of fractions of Jackson and 
Overton counties, but no line of such new counties shall approach 
the court house of Jackson or Overton counties nearer than ten 
miles, nor shall such county contain less than four hundred 
qualified voters, nor shall the area of either of the old counties 
be reduced below four hundred and fifty square miles; out of 
fractions of Roane, Monroe, and Blount counties, around the 
town of Loudon, but no line of such new county shall ever 
approach the towns of Maryville, Kingston, or Madisonville, 
nearer than eleven miles, except that on the south side of the 
Tennessee river said lines may approach as near as ten miles to 
the court house of Roane county. The counties of Lewis, 
Cheatham, and Sequatchie, as now established by legislative 
enactments, are hereby declared to be constitutional counties. 
No part of Bledsoe county shall be taken to form a new county, 
or a part thereof, or be attached to any adjoining county. That 
portion of Marion county included within the following bound¬ 
aries: Beginning on the Grundy and Marion county line at the 
Nick-a-jack trace, and running about six hundred yards west of 
Ben Posey’s to where the Tennessee Coal railroad crosses the 
line; running thence southeast through the pocket, near AYilliam 
Summers’, crossing the Battle Creek gulf at the corner of Thos. 
Wooten’s field; thence running across the Little Gizzard gulf at 
Raven Point; thence in a direct line to the bridge crossing the 
Big Fiery Gizzard; thence in a direct line to the mouth of Holy 
Water creek; thence up said creek to the Grundy county line, 
and thence with said line to the beginning, is hereby detached 
from Marion county and attached to the county of Grundy. No 
part of a county shall be taken off to form a" new county, or a 
part thereof, without the consent of two-thirds of the qualified 
voters in such part taken off; and where an old county is reduced 
for the purpose of forming a new one, the seat of justice in said 
old county shall not be removed without the concurrence of two- 
thirds of both branches of the legislature; nor shall the seat of 
justice of any county be removed without the concurrence of 
two-thirds of the qualified voters of the county. But the forego¬ 
ing provision requiring a two-thirds majority of the voters of the 
county to remove its county seat, shall not apply to the counties 
of Obion and Cocke. The fractions taken from old counties to 
form new counties, or taken from one county and added to 
another, shall continue liable for their pro rata of all debts con- 


NEW COUNTIES AND COUNTY LINES. 


483 


traded by their respective counties prior to the separation, and 
be entitled to their proportion of any stocks or credits belonging 
to such old counties. 1 

[Const. 1834, Art. 10, Sec. 4: “ New counties may be established by the 
legislature to consist of not less than three hundred and fifty square miles, 
and which shall contain a population of four hundred and fifty qualified 
voters. No line of such county shall approach the court house of any old 
county from which it may be taken nearer than twelve miles. No part of the 
county shall be taken to form a new county or a part thereof without the 
consent of a majority of the qualified voters in such part taken off; and in 
all cases where an old county may be reduced for the purpose of forming a 
new one, the seat of justice in said old county shall not be removed without 
the coucurrence of two-thirds of both branches of the legislature, nor shall 
said old county be reduced to less than six hundred and twenty five square 
miles; provided, however, that the county of Bedford maybe reduced to four 
hundred and seven ty-five square miles; and there shall not be laid off more than 
one new county on the west and one on the east adjoining the county of the 
dividing line, a majority of the qualified voters of said county voting in favor 
of said divisions; the counties of Carter, Rhea, and Humphreys, shall not be 
divided into more than two counties each, nor shall more than one new 
county be taken out of the territory now composing the counties of Tipton 
and Dyer; nor shall the seats of justice in the counties of Rhea, Carter, Tip- 
ton, and Dyer, be removed without the concurrence of both branches of the 
legislature. The county of Sullivan may be reduced below the contents of 
six hundred and twenty-five square miles, but the line of any new county 
which may be hereafter laid off shall not approach the county seat of said 
county nearer than ten miles. The counties of Marion and Bledsoe shall not 
be reduced below one thousand qualified voters of each in forming a new 
county or counties.”] 

[Const. 1796, Art. 9, Sec. 4: “No new county shall be established by the 
general assembly which shall reduce the county or counties, or either of them 
from which it shall be taken, to a less content than six hundred and twenty- 
five square miles ; nor shall any new county be laid off of less content. All 
new counties, as to the right of suffrage and representation, shall be con¬ 
sidered as a part of the county or couuties from which it was taken until 
entitled by numbers to the right of representation. No bill shall be passed 
into a law for the establishment of a new county except upon a petition to 
the general assembly for that purpose, signed by two hundred of the free male 
inhabitants within the limits or bounds of such new county prayed to be 
laid off.”] 

Art. 10, Sec. 5. The citizens who may be included in any 
new county shall vote with the county or counties from which 
they may "have been stricken off for members of congress, for 
governor, and for members of the general assembly, until the 
next apportionment of members to the general assembly after 
the establishment of such new county. [Same as Const. 1834, art. 10, 
sec. 5.] 

Creating and Reducing—Square and Eleven-Mile Clauses. 

County Not Containing Constitutional Number of Square Miles.— 

Turley, J.: “The proof in the case shows conclusively that the bound¬ 
aries of the county do not contain the constitutional number of 
three hundred and fifty square miles, but much less; and the ques¬ 
tion is, whether the commissioners can be prohibited by the decree 
of a court of chancery from organizing the county contrary to 
the provisions of the Constitution. The convention of the State, which 
formed the Constitution, thought proper to place restrictions upon the 
power of the legislature to establish new counties; and, of consequence, 
any attempt to do so contrary to the restrictions is a void exercise of 
power, which can and must be stopped by the judicial department oi 
the State. There is no other place to which an appeal can be made, and 
if the courts cau uot interfere, the Constitution, it violated, is a dead 
letter.” 21,433. Bradley v. Commissioners. 1841. 


‘See 29, 138. and 76, 732. 



484 


TENNESSEE CONSTITUTIONAL LAW. 


Objects of the Eleven Mile Clause — Construed as Prohibitory.— 
McKinney, J.: “The legislature, by the Act of 1844, ch. 204, established 
the county of Grundy out of parts of Warren and Coflee counties. The 
boundaries of the county are defined in the act; and in reference to 
Coffee county, it is provided that the line shall be run ‘so as not to 
approach Manchester (the county seat of Coffee county) nearer than 
twelve miles.’ The legislature, by a subsequent act, passed in 1846, and 
after the organization of Grundy county, took a portion of the territory 
of Coffee county, embracing two civil districts, and annexed it to the 
county of Grundy, whereby the line of the latter county was made to 
approach within less than twelve miles of Manchester. This bill is 
brought to have the Act of 1846, attaching said two districts to Grundy 
county, declared void. And it was so declared by the chancellor, and 
we think properly. 

“ It must have been foreseen by the framers of the Constitution that, 
unless the power to establish new counties were carefully circumscribed 
and guarded, great and irreparable injury might not unfrequently be 
done, not only to the public, but also to individual interests in the 
counties whose territory should be taken to establish such new counties, 
one of the most prominent of which, perhaps, was the necessity which 
might thereby be forced upon such old counties to change the location 
of their court houses and county seats. To guard against so serious an 
evil was unquestionably one of the principal motives which caused the 
restriction contained in the clause in question to be incorporated into 
the Constitution. And we construe it to be an absolute prohibition of 
the power on the part of the legislature, either in the establishment of 
a new county or in taking from one county a portion of its territory and 
attaching it to another, or in changing the lines of adjoining counties, 
to approach the court house of the county whose territory is taken for 
either of the foregoing purposes nearer than twelve miles. The restric¬ 
tion in question was designed to be a perpetual guaranty against legis¬ 
lative encroachment, in whatever mode it might be attempted. And it 
is manifest that, upon any other construction, the restriction would be 
utterly inoperative and unmeaning. 

“The argument opposed to this construction would leave it in the 
power of the legislature to do that by indirection which might not be 
done directly. It is admitted that to have done by the Act of 1844, by 
which the county of Grundy was established, what was done by the 
subsequent Act of 1846, would have been a palpable and undisguised 
violation of the Constitution. Aud, if so, by what process of reasoning 
can it be maintained that a power expressly prohibited in the former 
instance might be properly exercised in the latter? Surely the reason 
of the constitutional prohibition had lost nothing of its force, much less 
ceased to exist. And if, in the establishment of the county, the legis- 


NEW COUNTIES AND COUNTY LINES. 


485 


lature could not have enlarged the area of the new county so as to have 
approached the town of Manchester nearer than twelve miles, upon 
what principle of construction can it do so at a subsequent session so 
as to approach the town within eight miles? The object is to secure 
the counties from having their county seats approached nearer than 
twelve miles; and this object can no more be defeated upon the pretext 
of enlarging a new county after its organization than in its origiual 
establishment. The restriction upon the legislative power is alike 
operative and imperative in the one instance as in the other. If the 
reasoning on the other side were correct, it is obvious that the legis¬ 
lature, by a series of aggressive enactments from time to time, might 
encroach upon any and every county until the line of the new county 
should be made to approach the very limits of the county seat of the 
old county; for, if the court house may be approached, upon any pre¬ 
text, nearer than twelve miles, the constitutional restriction ceases to 
be operative, and the power to encroach is without limitation. Such an 
approach to the county seat, leaving the court house at or near the 
extreme verge of the county, would necessarily produce so much pub¬ 
lic inconvenience, such inequality of burden and benefit amoug the 
citizens of the county, and such deep and general discontent as would 
of necessity force a change of the county seat, and thereby bring about 
all the evils to the public and the invasions of private rights which 
the clause of the Constitution was intended to prevent. A constitu¬ 
tional provision, so wise and salutary in itself, so indispensably neces¬ 
sary for the protection of important interests, public as well as private, 
and no less essential to the quiet and repose of local communities, can 
not be disregarded or evaded in the mode attempted in this case.” 
28, 588. Gotchers v. Burrows. 1848. 

County a Public Corporation—County Court—Legislative Power— 
Jurisdiction of Chancery Court in Suit Between Two Counties Where Ter¬ 
ritory is in Dispute. — Totten, J.: “The bill is filed by the justices of 
the County court of Maury, who sue lor themselves and the citizens of 
said county against the justices of the County court of Lewis and the 
sheriff and collector of said county, the parties representing the rights 
of said counties respectively in the matter in issue. The bill seeks to 
assert and maintain the right of Maury county to the territory which has 
been taken from it in the formation of the new county of Lewis. . . . 
A county is a public corporation, created by the government for political 
purposes, and invested with subordinate legislative powers, to be exer¬ 
cised for local purposes connected with the public good, and such pow¬ 
ers are, in general, subject to the control of the legislature of the State. 
2 Kent’s Com., 275. 

“The County court, or the justices composing that court, represent 
the civil and political power of the county, its rights and obligations. 


486 


TENNESSEE CONSTITUTIONAL LAW. 


It is through this medium, therefore, that the county, in its municipal 
character as a corporation, may act or be acted upon. There is no other 
court or officer known in its organization that can or should represent it. 
. . . This suit, so tar as relates to parties, was formally and properly 

instituted. It appears that the legislature, by act passed December, 1843, 
established Lewis county, 1 to be composed of fractions taken from the 
counties of Maury, Lawrence, Wayne, and Hickman/ . . . The Con¬ 

stitution, art. 10, sec. 4, provides that new counties may be established, 
by the legislature, to consist of not less than three hundred and fifty 
square miles, and which shall contain a population of four hundred and 
fifty qualified voters. No line of such county shall approach the court 
house of any old county from which it may be taken nearer than twelve 
miles. Nor shall said old county be reduced to less than six hundred 
and twenty-five square miles. Such are the restrictions and limitations 
imposed by the organic law of the State upon the legislative power and dis¬ 
cretion in this respect. . . The act in question has express reference 

to these constitutional checks. It required the surveys to be made of 
the several counties, parts whereof were to compose the county of 
Lewis, and the boundaries of Lewis were likewise to be surveyed and 
ascertained. It then provides that if there be territory and population 
sufficient to meet the requirements of the Constitution without infring¬ 
ing upon the constitutional rights of the older counties, then, and in 
that case only, the county of Lewis was to be organized and established. 
The act does not,, therefore, infringe any of said provisions in the Con¬ 
stitution. If there was not territory enough upon actual survey, or 
population enough, the county was not to be organized and established. 
Whether the county could be legally established depended upon these 
facts, and these were to be ascertained by the commissioners appointed 
for that purpose under the act. The commissioners having designated 
the limits of the new county, assumed that said prerequisites did exist, 
and had been complied with. That is, that the county of Lewis con¬ 
tained three hundred and fifty square miles and four hundred and fifty 
qualified voters j that its limits did not approach the court house of the 
older counties nearer than twelve miles, and that those counties had 
not been reduced to less than six hundred and twenty-five square miles. 

“But, in point of fact, this assumption was erroneous, as relates to 
the county of Maury, in the two particulars before stated. The line, as 
marked by the commissioners, did approach within twelve miles of the 
court house of Maury, and the area of Maury was thereby reduced to 
less than six hundred and twenty-five square miles—that is, was reduced 
to about five hundred and thirty-seven square miles, and was thus 
deprived of a considerable portion of its territory and population to 
which it had a constitutional right. This was occasioned by error, in 
fact, on the part of the commissioners, and by their failure to comply 


NEW COUNTIES AND COUNTY LINES. 


487 


with the provisions of the act under which they were appointed. It is 
now argued, in defense, that a court of chancery has no jurisdiction to 
relieve in such case, because the act of the legislature is consummated 
in the establishment of the new county; that the jurisdiction of the 
court in this respect is preventive only, and that it can not undo the act 
of the legislature after it has been fully carried into operation. The 
case of Ford v. Farmer, Bradley v. The Commissioners of Powel, Gotchers 
v. Burrows, are referred to. In the principle which ruled in Bradley v. 
The Commissioners we fully concur. . . . 

“ But the court says that the county, under the statute, becomes a 
political corporation of the State, and a court of chancery has not power 
to inquire into the validity of the act, and, as we apprehend, a court of 
law neither. It is not necessary in the case now before us that we 
question the correctness of this principle. It is true that, in one aspect 
of the case, the bill seeks to abrogate and abolish the county of Lewis, 
but we have not considered it in that view, nor assumed in this opinion 
the facts relied upon for such decree. We regard it as the suit of Maury 
county, seeking relief, present and preventive, for injuries done and 
impending to her constitutional rights. In giving relief to the county 
of Maury we do not abrogate and annul the county of Lewis. We do 
not consider whether it has been or may be constitutionally established 
—whether there is territory enough or population enough. We only 
say what is very evident—that its boundary as designated by the com¬ 
missioners trenches upon the vested and constitutional rights of Maury. 
Whether it be free from constitutional objections in other respects we 
do not determine. The act to establish it is, in its terms and on its 
face, free from any such exception; but the commissioners in designat¬ 
ing the boundary, not conforming to the directions of the act, have 
invaded the county of Maury and attempted to take from it a portion 
of its territory and population, and to include them within the county 
of Lewis. The county of Lewis has taken possession of this territory, 
has exercised jurisdiction over it, and claims the right to continue that 
possession and jurisdiction. 

“The question, therefore, is between the counties of Maury and* 
Lewis as to the right to the disputed territory. In determining this 
question we do not necessarily determine that the county of Lewis has 
no constitutional existence. In this view of the case the principle 
referred to in Ford v. Farmer can have no application. The case of 
Gotchers v. Burrows was simply this. . . . Certainly this case is not 

in conflict with the view we take of the case now before us. It the act 
establishing the county of Lewis had designated the boundary in ques¬ 
tion to be as it was run by the commissioners, there is no question 
but that it would be considered as a void exercise of power. Can the 
boundary as erroneously designated by the commissioners, have any 


488 


TENNESSEE CONSTITUTIONAL LAW. 


greater sanction or validity? If, upon any principle such boundary may 
be held as valid, then there remains no check or limit to encroachment 
upon the older counties. But regarding it as a void designation of 
boundary, the vested rights of Maury were not affected by it, but remain 
as if the boundary had not been made. It was the act of the commis¬ 
sioners of Lewis, in which Maury did not concur or assent. . . . We 

think, therefore, that the plaintiff* is entitled to the relief indicated; 
that the designated boundary is to be regarded as null and void; that 
the county of Maury is entitled to her original limits, as no boundary 
has been run for the county of Lewis in conformity to the limitations 
and restrictions contained in the Constitution, and by which the county 
of Maury could be limited. The county of Lewis will, therefore, be 
enjoined from exercising any jurisdiction within the said limits ot 
Maury.” 31, 241. Maury County v. Lewis County. 1851. 

Old County Must be Measured.— WRIGHT, J., held: “Before a portion 
of a new county will be restored to the county from which it was taken, 
it must clearly appear, by an actual measurement of the territory of 
the old county, and au enumeration of its voters, that her constitutional 
rights have been invaded.” 41, 264. Bridgenor et at. v. Bodgers et al. 
1860. 

New County — Straight Line Rule.—TURNEY, J., held that the Act 
of 1869-70, second session, ch. 27, “so far as it merely established 
the county of Trousdale, is valid; but so far as by the boundaries 
prescribed it has entrenched upon the counties of Macon and Smith 
lessening their constitutional area, it is void.” Speaking of an 
English authority, Judge Turney says: “In noticing Jewel v. Stead, 
he says: ‘The question arose upon a turnpike act, which provided that 
no toll gate should be erected within three miles of another toll gate, 
and all that was decided was that the general rule should be adhered 
to, that when in an act of parliament, distance is mentioned, generally 
without any other guide the straight line rule is to be adopted. This is 
one of the cases in which Lord Campbell says that the distance is to be 
measured by a straight line on the horizontal plane. This measurement 
of distance on a horizontal plane is a proper mode of measurement, 
when you are laying down an arbitrary rule to determine whether a 
particular case comes within an act of parliament or not, there being no 
question of conduct and of liability by reason thereof; but when the 
whole question arises upon the conduct of the parties, such a rule, it is 
submitted, is wholly inapplicable/ etc. From these extracts we see 
there was no difference in opinion in the application of the straight line 
rule in the construction of acts of parliament, and that the whole differ¬ 
ence is in applying it to contracts between individuals.” 61,11. Macon 
and Smith Counties v. Trousdale County. 1872. 


NEW COUNTIES AND COUNTY LINES. 


489 


Although the Creation of These Political Corporations is a Legislative 
Function, Chancery Court Has Jurisdiction. — SNEED, J.: “It may be 
stated as the settled law that while the creation of these political cor¬ 
porations is a legislative and not a judicial function, the court of chan¬ 
cery has the jurisdiction and power to see to it that the Constitution 
and law be not violated in fixing the boundaries of the new counties, 
and in securing to the old counties out of which the new one is carved 
so much of its territory as is declared inviolable, or by protecting such 
other rights of such old counties as are guaranteed by the organic law. 
We do not understand the doctrine of the case of Ford v. Farmer to 
contravene these principles, but, on the other hand, to affirm them.” 
63 , 598. Humphreys County v. Houston County. 1874. 

County Not Estopped by Lapse of Time — Publication of Act. — By 
the *Act of December 15th, 1871, a portion of Hancock county was 
added to Hawkins county, the line ruuuing within eleven miles of the 
county site of Hancock county. Cooke, J., held: “Upon a bill filed by 
Hancock to restore the territory that complainant was not estopped by 
mere lapse of time, iu ignorance of the tact that there was an encroach¬ 
ment upon the constitutional limits of Hancock county. An act of the 
legislature properly passed and regularly approved does not become 
invalid by reason of a failure to publish the same among the acts of the 
legislature.” 83 , 267. Hancock County v. Hawkins County. 1885. 

Reduction of Area—Lost Territory—Power of Legislature to Restore. 
Lurton, J., held: “Reduction of the area of an old county below the 
constitutional minimum of five hundred square miles can not be effected 
either by act of the legislature or a fortiori of the County court. . . . 
But the legislature has the power to restore to a county territory which 
it may have lost by its laches and long acquiescence in the claim and 
possession thereof by another county, and for that purpose to detach 
that territory from the latter county, although the area be thereby 
reduced below the constitutional minimum.” 89 , 258. Roane County 
v. Anderson County. 1890. 

Affirmative Consent of Two-Thirds of the Voters Required.—TURNEY, 
J.: “The language of the clause is plain and unambiguous. ‘ No part of 
the county shall be taken off without the consent of two-thirds of the 
qualified voters in such part. The word ‘consent’ here means the active 
concurrence, and can not be substituted for by a passive acquiescence. 
The argument that two-thirds of the votes cast, and the authorities 
persuasive to that view of the question can be of no service here. 
First, and mainly, because it is not contemplated by the framers of the 
Constitution that the ‘consent’ shall be ascertained by ballot any more 
than it was that it should be arrived at in any other mode the legislature 


‘ M. & V., 26. 



490 


TENNESSEE CONSTITUTIONAL LAW. 


may have seen proper to adopt, and to hold that a two-thirds vote of 
those who attended the election and cast their ballots shall determine 
the matter, would be to hold that an election in the ordinary way is the 
only mode in which the consent required may be obtained or made cer¬ 
tain, this would place the legislature above the Constitution and inde¬ 
pendent of the people. The fact that the Constitution demands in gen¬ 
eral terms the consent of two-thirds, and fixes no means of getting at 
that consent, but leaves the means to an enabling act of the legislature,, 
is of itself conclusive that it intends its language to have the active 
construction that two-thirds shall speak affirmatively. In the instru¬ 
ment itself we have positive authority for the interpretation already 
given. In art. 2, sec. 27, it is provided. . . . Here we have an 

expression for elections that shall be binding upon those not voting, and 
in it the milder term 1 assent’ is used, because their actual approbation 
is not required as in the clause under consideration. Having in this 
clause prescribed the mode in which the people may proceed to ouerate 
themselves with burdens of taxatiou in terms understood by themselves 
without the aid of argumentative construction. We must conclude that 
the clause before us, being of a nature kindred to the one just referred 
to, was intended to be equally clear and certain, expressing on its face 
the full and true intent and meaning of the instrument containing it. 
We can not presume that the framers of the Constitution did not under¬ 
stand the force of this language, or that they meant the plain and unam¬ 
biguous expressions employed to mean more or less than their face 
imparts.” 52, 310. Cooke et al. v. Gooch et al. 1871. 

Old Doctrine Reaffirmed—Acts 1889, Chapter 194. — SNODGRASS, J. r 
held: “A statute changing the line between two counties is unconstitu¬ 
tional if it cuts off territory from one connty which lies within eleven 
miles of its court house and transfers such territory to the other 
county.” 90, 541. Union County v. Knox County. 1891. 

County Territory—Legislative Restrictions as to Dividing Counties.— 
Cartjthers, J.: “The legislature, on 27th of February, 1856, passed an 
act by which a portion of the county of Marion was attached to the 
county of Grundy. This bill was filed by Marion, to have her territory 
restored, upon the ground that said act was unconstitutional. By the 
Constitution, art. 10, sec. 4, the last clause, the county of Marion ‘ shall 
not be reduced below one thousand qualified voters’ in forming any new 
county. And, by a previous general clause, including Marion, no old 
county * shall be reduced to less than six hundred and twenty-five square 
miles.’ The bill alleges that the Constitution has been violated by the 
act in question in respect to population as well as territory. 

“It appears that by an act of the same session, passed two days 
before, ch. 162, sec. 3, the first and second civil districts of Marion were 


NEW COUNTIES AND COUNTY LINES. 


491 


attached to Hamilton, but this was not to take effect until the 21st of 
September, 1857. The proof shows that without the two districts annexed 
to Hamilton, and the fraction attached to Grundy, the area of Marion 
would be only tour hundred and ninety-two and one-half square miles, 
and the number of qualified voters eight hundred and seventy, including 
those in the part attached to Grundy. It is left to be inferred from the 
proot, and we suppose the fact to be so, that if the two districts were 
not detached from Hamilton, then both the territory and population of 
Marion would be sufficient to save the act in question from constitu¬ 
tional objection. So the case must turn upon the question, whether, at 
the time the act complained of was passed, the first and second districts 
constituted a part of Marion? Two days before they had been stricken 
off and attached to Hamilton, so far as the legislature had power to do 
it. But it is said that it was not to take effect until the next September. 
What of that? The deed was done, and no conditions affixed. The ter¬ 
ritory and population were transferred, and nothing remained to be done 
by any power—nothing but the lapse of seven months was required to 
consummate the deed. It must be regarded, then, that the legislature 
had exhausted its power—and, perhaps, more than its legislative power 
(but that question is not in this case), in dismembering this little county, 
before the last act was passed; and, if so, the same is unconstitu¬ 
tional. . . . 

“The unceasing efforts and ingenious devices adopted to evade or 
break loose from these restrictions, designed for the protection of old 
counties, against that restless desire for change, on the part of the peo¬ 
ple in particular sections, which is often fanned, if not kindled, by 
aspirants for their own benefit, demonstrate the necessity of the prohi¬ 
bition. The members of the convention, as wise and practical men, 
foresaw this evil, and endeavored to prevent it. It is the duty of the 
courts to favor and firmly maintain that policy. And this court has not 
failed to do so in all cases which had not passed beyond the control of 
the courts before the institution of the proper proceedings. ... We 
are of opinion that the Act of February 27, 1856, ch. 248, so far as it 
relates to Marion county, is in conflict with the Constitution, and there¬ 
fore void.” 37, 492. Marion County v. Grundy County. 1858. 

Liability of Old and New County for Debts of Old County.— This case 
was a motion in the Circuit court of Perry county against the defendant, 
as trustee of said county, for the non-payment of several claims held 
by the plaintiff against the county. Motion dismissed. Plaintiff 
appealed. Totten, J.: “ It is objected that the county of Perry is not 
liable to pay the claims, but that they are properly a charge upon the 
county of Decatur. By the Act of 1845, chapter 7, that portion of 
Perry, west of Tennessee river, was detached from Perry, and organ¬ 
ized into the new county of Decatur—leaving the county of Perry with 


492 


TENNESSEE CONSTITUTIONAL LAW. 


its original organization, but a diminished territory. The ninth section 
of the act provides, ‘that all debts and liabilities which may now be due 
and owing by the county of Perry, shall be liquidated and paid by each 
county respectively, in proportion to the tax lists taken for the year 
1845, until said debts are paid. It appears by the answer of the 
defendant to interrogatories filed for discovery in this proceeding, that 
at the time of the division of Perry county, under said act, its debts 
and liabilities amounted to $2,410.72, whereof, having reference to the 
tax list of 1845, and the provision of said section, the sum of $1,109.38 £, 
was chargeable to the county of Perry, and $1,301.33^, to the county of 
Decatur, and that the county of Perry has paid its portion of said debts. 
And the claims in question being of a prior date to the division of said 
county, it is insisted that they are properly a charge on the county of 
Decatur. 

“There can be no question, but that, as between the two counties, 
Decatur is liable under said section, for its proper portion of the debts 
of Perry existing at the time of the division. The liability is imposed 
by the same law, which gives it existence as a county, and it is as much 
bound by this provision as by any other in the law. It is certainly the 
duty of the County court of Decatur to take proper action to perform 
this obligation, by providing funds and ordering its trustee to make the 
proper payments, as it would be neither legal nor proper for him to 
make the payments without such order. 

“But as relates to the creditors of Perry, it was not intended by the 
act, nor was it competent for the legislature to release the county of 
Perry from its liability to them, and to transfer their credits to the 
county of Decatur. The county of Perry remains under its original 
organization, but with a restricted territory; the obligations to which it 
was subject likewise remain, until they shall be discharged. The creditor 
has the right to insist that his contract be not violated; and his con¬ 
tract being with the county of Perry, he may insist upon its obligation. 
It is certainly true, as before intimated, that the county of Perry has its 
recourse for indemnity, upon Decatur, in a proper proceeding instituted 
for that purpose.” 30, 534. Howard v. Horner. 1851. 

Old Counties—Tax Assessors for Fractions Thereof.— TURNEY, J.: 
“The first question presented by the bill is as to the constitutionality of 
the act of the legislature, passed March 18, 1875, entitled ‘An Act to 
enable old counties from which fractions have been taken to form new 
counties, to appoint tax assessors for said fraction and to collect taxes 
therein.’ . . . The act ... is simply an enabling act to art. 10, 

sec. 4, of the Constitution, and is intended to furnish a remedy for the 
enforcement of the rights defined and declared by it. Its passage was, 
therefore, not only within the power of the legislature, but strictly 
within the line of its duty.” 71, 120. Matthews et at. v. Blount County 
et al. 1879. 


NEW COUNTIES AND COUNTY LINES. 


493 


Abolishment of Counties. 

Power of Chancery Court to Abolish New County.— TURLEY, J., held: 
“A court of chancery has no power, at the instance of individual citi¬ 
zens, to abolish a new county after it has been organized and put into 
operation, upon the ground that the act of the legislature directing the 
organization was violative of the State Constitution; but it may inter¬ 
fere, at the instance of an old county whose territorial limits are con¬ 
stitutionally trenched upon, to secure to it its vested rights by forcing 
back the lines of the new county the required distance.” 28, 152. 
Ford v. Farmer et al. 1848. 

Legislature Has No Power to Abolish and Partition County — How 
this Must be Done a Doubtful Question — County a Government Within 
a Government.— Turney, J.: “An act of the legislature, approved 
March 11, 1890, by its first section abolished the county of James, and 
restored its territory to the counties of Hamilton and Bradley, from which 
it had been formed in 1871. This bill is filed charging that the Act of 
1890 is unconstitutional and void, enjoining action under it, and asking 
that it be declared null. . . . Art. 10, sec. 4, contains all the pro¬ 

visions on the subject of counties, county lines, etc. From it, it is 
clearly manifest the authority and only authority conferred is to build 
up, and not to pull down. It is equally apparent that it never occurred 
to the framers that a county could be destroyed or dissolved by an arbi¬ 
trary act of the legislature. The expression of the one thing is the 
exclusion of the other. If the Constitution is so careful of the rights 
of old counties in taking from them fractions to form new counties; if 
it is so watchful of the rights of citizens in couhty seats, it follows that 
it is also jealous of any power that might utterly destroy old counties. 
At the passage of the act before us, James county was, in a legal seuse, 
as much an ‘old county’ as Washington or Davidson, and had all the 
rights of such. In all the cases that have arisen in the State touching 
county lines, the reduction ot counties to form new ones, the removal 
of county seats, etc., the courts have invariably held to the restrictions 
of the Constitution. If two-thirds of the qualified voters in the part 
taken from an old county to go to the formation oi a new is required, 
why is not the same principle, derived from the same instrument—the 
Constitution — applicable to the effort to divide an old county into two 
parts, giving one part to Bradley and another part to Hamilton? It it 
requires two thirds of the qualified voters ot a county to remove its 
seat of justice to another point in that county, by what process of 
reasoning can we conclude that a seat of justice may by legislative 
enactment be divided between the seats of justice of two adjoining 
counties? 


494 


TENNESSEE CONSTITUTIONAL LAW. 


“If the voters must by a two-thirds majority consent to a removal 
or to a detachment from one and attachment to another county by the 
terms of the Constitution, why is not the same rule applied to the 
purpose of dissolving a county, and then attaching its several parts to 
other counties, if it can be done at all?—a very doubtful question. . . . 
It is insisted that as the Constitution does not prohibit by its terms the 
dissolution of a county, therefore the legislature may dissolve it. The 
answer to this argument is, as we have already intimated, that it was 
never intended that such thing should be done, unless, perhaps, by a 
vote of the people (about which we intimate no opinion), as in the case 
of the taking off a part of a county to form a new one, which is a 
partial dissolution, and the only one provided for in the Constitution. 

“A county is a government within a government, and its voters must 
be consulted in all matters pertaining to it. It is not created, nor can 
it be dismembered or destroyed by an arbitrary legislative breath. The 
legislature having once granted its consent, can not of its mere motion 
withdraw it. The county was made at the instance of the people, and 
for its people, and can be changed or abolished, when at all, only by 
their consent. If the legislature may dissolve one county and divide it 
out amongst its neighbors, it may abolish all and destroy the State. It 
may divide Davidson or Knox, and remove their county seats to any 
other county by its legislative partition. The sole purpose of the Con¬ 
stitution was to build up and preserve, hence its restrictions about leg¬ 
islative interference with organized counties. It may be said to have 
been the policy of the framers of the Constitution of 1870 to encourage 
the creation of new counties, as it reduced the approach to county seats 
of old counties in the formation of new ones to eleven miles instead of 
twelve, as ordained by the Constitution of 1834. 

“We are aware of but one case in the Union in which the question 
here presented has arisen—The People v. Marshall, 12 Ill., 391—in 
which it was held: ‘The legislature can not abolish counties and form 
the territory of which they were composed into one or more counties 
without submitting the act to a vote of the inhabitants affected by the 
change.’ In that case the county of Gallatin had been divided, and the 
county of Saline formed of part of it. The legislature undertook ‘to 
create the county of Gallatin out of the counties of Gallatin and Saline,’ 
in other words, to abolish Saline and add its territory to Gallatin. The 
Constitution of Illinois is in this respect very similar to ours. The fact 
that the question has only arisen in the two cases goes to show that 
legislatures have heretofore interpreted Constitutions as giving no 
such power, either by implication or in terms. If desirable to abolish 
or change counties, the people interested ought to be consulted. Such 
are the spirit and policy of constitutional popular governments. They 
can and ought to be carried out. The legislature can not do indirectly 


NEW COUNTIES AND COUNTY LINES. 


495 


a thing not to be done directly. To abolish a county and give its terri¬ 
tory to others is to take from the one and add to the others without the 
consent ot the people to be affected. A Constitution which prohibits a 
small taking oil, or appropriation, certainly protects against entire 
destruction. The act is void.” 89, 240. James County v. Hamilton 
County. 1890. 

Removal of County Seat—Concurrence and Consent of Voters. 

i 

Self Operative Clause of This Section—“Concurrence,” Meaning of.— 
McHenry, Sp. J.: “The Act of 1873, ch. 103, . . . sixth section 

thereof is in these words: l Be it further enacted f That the county seat 
shall not be removed to any place unless a vote is cast for the removal 
to said place equal to two-thirds of the votes cast in the next preceding 
governor’s election.’ . . . Our first inquiry on this point is, what do 

the terms ‘ concurrence of two-thirds of the qualified voters of the county ’ 
mean? In the case of Cocke v. Gooch, MS. opinion, delivered at Jack- 
son in 1871, the first clause of the Constitution above copied came 
before this court for construction. ... * The court says the word 
‘ consent’ here means the active concurrence, and can not be substituted 
for by a passive acquiescence. Instead of presuming that those who 
did not vote in the election meant by their non-action to submit to the 
result of a count of the votes cast , we hold that a proper reading of the 
Constitution and enabling act authorizes those who did not vote to con¬ 
clude that their votes against the project could avail nothiug, as a fixed 
affirmative numerical strength was absolutely necessary to the success 
of the new county.’ Such is the law. This construction of said clause 
is strengthened by a citation in said opinion of the different reading of 
a part of sec. 29 of art. 2 of the Constitution, in regard to the credit of 
a county, city or town given, or loaned to, or in aid of any person, com¬ 
pany, association or corporation. Then follows this language: ‘Except 
upon an election to be first held by the qualified voters of such county, 
city or town, and the assent of three-fourths of the votes cast at said 
election.’ 

“ In the clause under discussion in this case the only difference in 
the language employed is that ‘concurrence’ is used instead of ‘con¬ 
sent.’ These words are used in that part of the Constitution we are 
construing synonymously and interchangeably. All the reasons which 
have been stated or exist for construiug ‘consent’ to mean an active, 
affirmative act, on the part of the voter, to manifest his consent, apply 
with equal force to give a like construction to the word ‘concurrence,’ 
and this we do. It follows the sixth section of the act in question is 
unconstitutional. The Constitution requires two-thirds of the qualified 
voters in the county to concur in the removal. The mode of concur- 


496 


TENNESSEE CONSTITUTIONAL LAW. 


rence is left to be prescribed by the legislature. The section of the act 
we are considering requires a vote of two-thirds of the qualified voters 
of the county, on the basis of ‘the next preceding governor’s election.’ 
The Constitution requires two-thirds of the qualified voters at the time 
the vote is taken. The sixth section is repugnant to the Constitution, 
and is void. The number it requires, we add, may be the same as that 
demanded by the Constitution. It may be more or less. The number 
of qualified voters in the county, when the vote is taken, is a question 
of fact, to be determined like all other questions of fact—upon the 
proof. The number of votes at the next preceding governor’s election 
may, perhaps, be looked to as evidence in ascertaining the number of 
qualified voters in the county when the vote was taken, but not other¬ 
wise. The increase and diminution of voters, consequent on immigra¬ 
tion and emigration of voters, keeps the voting population of a county 
in continual fluctuation. 

“The question now arises, if the sixth section of the Act of 1873 be 
unconstitutional, are its other sections valid and constitutional? . . . 

Let us suppose the legislature had wholly omitted from the act the sixth 
section. In such case no serious difficulty could have arisen. The Con¬ 
stitution itself provides, as we have seen, that the number of votes con¬ 
curring for the removal of the old county seat must be two-thirds of the 
qualified voters of the county. This number can not be varied by legis¬ 
lation. All that was necessary to carry this provision into effect was for 
the legislature to yield its assent, and direct the mode in which such 
concurrence should be manifested. And the fact that the sixth section 
is declared unconstitutional can have no greater effect than if it had 
been wholly omitted from the act. The Constitution, in this clause, is 
self-operative. It co-operates, so to speak, with the other sections of 
said act, and taken together, there remains legislation adequate to carry 
out and effectuate fully the legislative will, as evidenced by the various 
remaining sections. The leading primary and fundamental purpose of 
the act was to enable the people, in conformity with the Constitution, to 
remove the county seat. That power remains with the sixth section 
declared unconstitutional, and the clause of the Constitution under con¬ 
sideration in place thereof executing itself.” 62 , 269. 1 Bouldin v. 

Lockhardt. 1873. 

Legislature Can Not Remove County Seat.—DEADERICK, J., held: 
“The legislature can not, by direct or indirect means, remove a county 
seat. It can only be done by the concurrence of two-thirds of the 
qualified voters of the county.” 67 , 141. Stuart v. Blair. 1874. 

By Vote “Equal” to Two-Thirds of Previous Vote. — INGERSOLL, 
Sp. J., held: “The enabling Act of 1873, chapter 103, providing that a 


1 See same case, art. 6, sec. 10, p. 450. 



NEW COUNTIES AND COUNTY LINES. 


497 


county seat may be removed to any place in the county by a vote equal 
to two-thirds of the votes cast in the next preceding governor’s election, 
is iu conflict with” this section. 69, 195. Bouldin et al. v. Lockhardt 
et al. 1878. 

Ascertainment of Popular Desire and Act of Removal Must be at 
Same Time.— Cooper, J.: “The Act of 1881 provides for an election 
• ‘ to ascertain if the people desire the county seat removed from its 
present location.’ And at the election for this purpose a concurrence of 
two-thirds of the qualified voters is required. The act then requires 
another election to be held to determine the place where the county 
seat is to be located, at which election a majority of the votes shall pre¬ 
vail. In other words, the popular ‘desire’ for a change must be shown 
by a two-thirds vote, while the actual removal may be determined by a 
bare majority. But the Constitution says nothing about ascertaining 
the popular ‘desire,’ by an independent vote, to a change in the abstract, 
and forbids the county seat to be ‘removed’ without the concurrence of 
two-thirds of the qualified voters. And it is difficult to conceive how 
the seat of justice of a county can be ‘removed’ from one place until it 
has been actually transferred by law to another place. The Constitu¬ 
tion manifestly contemplates that the old seat of justice shall continue 
as originally located until there is an actual removal to another place 
by the required vote. The desire and the removal, the will and the 
deed, must concur in one and the same election. If it were otherwise, 
there might be repeated elections before a majority vote could be 
obtained for any one locality, the people of the county excited and cor¬ 
rupted by the struggles of private interests, and the property owners 
of the county town kept in a state of protracted uncertainty. A change 
of the seat of justice ought clearly not to be made unless the public 
interests unmistakably point to the new locality. The act of the legis¬ 
lature which allows the removal by a bare majority is clearly unconsti¬ 
tutional.” 79, 29. Combs et al. v. Stumple et al. 1883. 

There Must be Active Concurrence, Not Passive Acquiescence.— 

Cooper, J., held: “There must be an active concurrence and not a pas¬ 
sive acquiescence, and therefore two-thirds of the qualified voters must 
actually vote in favor of the removal.” But after referring to the decis¬ 
ions holding this, he said: “I am, myself, unable to see any distinction 
between the meaning of the words ‘consent,’ ‘concurrence,’ and ‘assent,’ 
as used in the clause of the Constitution cited, and am incliued to think 
that the rule adopted in the Railroad Company v. Davidson County, for 
the construction and application of analogous words in a statute, might 
well have been followed in construing and applying the language of the 
Constitution. But this court has thrice announced a different doctrine, 
and a majority of its members are not inclined to change it.” Judge 
Cook dissented. 84, 581. Braden et al v. Stumph et al. 1886. 


32 


498 


TENNESSEE CONSTITUTIONAL LAW. 


Seat of Justice — Special Court — This Clause Construed. — The ques¬ 
tion here was the validity of the Act of 1891, ch. 2G. T. S. Webb, Sp. J., 
held: “The statute establishing a special law court for five of the 
seventeen civil districts of a county, to be held at a place other than 
the county seat of such county, is not in conflict with that clause of the 
Constitution which forbids the removal of ‘the seat of justice of any 
county . . . without the concurrence of two thirds of the qualified 

voters of the county. 7 The establishment of such special court does 
not operate to remove ‘the seat of justice 7 of the county.” 

In delivering the opinion, he said: “The seat of justice, within the 
meaning of the Constitution, is what is commonly called ‘the county seat. 7 
It is the place where the County court and the jail and the county officers 
are located, the place where the Chancery and Circuit and County courts 
are held, and where the county records are kept. The seat of justice is 
located with reference to the convenience of the citizens of the county. 
After it is located, the County court is required by law to erect a ‘ court 
house, jail, and other necessary county buildings. 7 Code, sec. 408. 1 
The money to purchase the land and erect the buildings is raised by 
taxation. The citizens of the county pay the taxes. The land and 
buildings cost a large sum of money. The buildings are modeled and 
constructed with a view to the purposes for which they are to be used, 
and are not adapted to other purposes. A removal of the seat of justice 
would leave this property, for which the citizens of the county have 
paid in taxes, on the hands of the county, to be held at a total loss, or 
sold at a great sacrifice; and the citizens must be immediately-taxed 
for the purpose of building a new court house and jail and other county 
buildings at the new county seat. Moreover, the county seat might be 
removed to a point very inconvenient of access to a majority of the 
citizens. Thus, any arbitrary removal of the county seat might subject 
the citizens of the county to both pecuniary loss and great inconvenience. 
To prevent these hardships, the Constitution has expressly provided that 
county seats shall not be removed without the concurrence of two thirds 
of the qualified voters of the county. 77 92, 85. 1 Ellis v. The State. 1892. 


1 See same case, art. 1, sec. 9, p. 81; art. 6, sec. 1, p. 409; M. & V., 467. 



LAWS IN FORCE —LAWS ABROGATED. 


499 


ARTICLE XI. 

MISCELLANEOUS PROVISIONS. 
Laws In Force — Laws Abrogated. 


PAGE. 

Laws of North Carolina in Force in Ten¬ 


nessee—Act of Cession. 499 

Entry-Taker—Laws, Obsolete and Repealed 

— North Carolina Statutes. 500 

Schedule of 1865, Section 5.502 


PAGE. 

State and Federal Constitutions —Nature 

of State Powers —Schedule of 1865.. 502 


This Clause Construed.504 

This Clause Cited.89, 429, 472 


Article 11, Section 1. (All laws and ordinances now in 
force and in use in this State, not inconsistent with this Constitu¬ 
tion, shall continue in force and use until they shall expire or 
be altered or repealed by the legislature.) But ordinances con¬ 
tained in any former Constitution or schedule thereto, are 
hereby abrogated. 1 [Const. 1834, art. ll. sec. 1, and Const. 1796, art. 10, 
sec. 2, contained only the clause iu parenthesis.] 

Laws of North Carolina in Force in Tennessee—Act of Cession.—It 
was urged that the statute under which defendant was indicted was 
passed in North Carolina in 1799, and was not in force in Tennessee. 
White, J.: “It has been urged, that, although this statute may at this 
time be in force in North Carolina, yet it is not in force in Tennessee. 
Because by article 10 and schedule to the Constitution of this State, no 
law of North Carolina is in force, except such as is consistent with our 
new form of government, and had been before in force and use in this 
part of the country; that this statute had not been in use, and there¬ 
fore is not one of those that was enforced by that provision. In 1779, 
when this statute was enacted, what is now Tennessee formed a part of 
the State of North Carolina, and continued to be a part of it until ceded 
to the United States in 1789. During ten years, then, it would seem, 
this statute must have been, legally speaking, as much in force and use 
here as in any other part of North Carolina. In the Act of Cession, 
there is a provision that the laws of North Carolina, so far as is con¬ 
sistent with our new situation, should continue in force. The territorial 
government continued until the year 1796, when a Constitution was 
formed, and Tennessee became a member of the Uniou. In that Con¬ 
stitution, and in the article referred to, the members of the convention 
provide for a continuance of all the North Carolina laws which had been 
in force and use, and were not inconsistent with our form of govern¬ 
ment. 

“ It has not been pretended, and, it would seem, can not be with pro¬ 
priety, that there is any provision in this statute inconsistent with our 


1 See 4 , 9, and 9 , 6. 

Const. 1796, Art. 10, Sec. 1: “ Knoxville shall be the seat of government until the year one 
thousand eight hundred and two.” 









500 


TENNESSEE CONSTITUTIONAL LAW. 


form of government while a territory, nor since we became a State. 
But the argument is, that it must be shown that this statute was in use 
as well as in force, during the territorial government, otherwise it is not 
one of those enforced by the Constitution. Upon this point the record 
is silent. It does not show whether any individual was indicted under 
this statute or not, during the territorial government. Nor do we con¬ 
ceive it necessary such proof should be afforded. This State is not in 
the situation of a State adopting the laws of some foreign country, 
which laws must be proved, in order to enable the courts to know what 
they really were. In all our different changes we retained those laws 
to which we had been accustomed, and with the provisions of which we 
are presumed to have been acquainted, with the exception of those that 
were inconsistent; first, with the territorial, next with the State gov¬ 
ernment. And it really would be a novelty to call for proof, in every 
case that depends upon any law except a statute of Tennessee, that 
such law had been in use in every form of government under which we 
had lived. To give this statute effect, we do not deem it necessary to 
know that any man was indicted under it during the territorial govern¬ 
ment. Every criminal law of North Carolina that was in force during 
the territorial government may be said to have been in use likewise. 
So long as the citizens conformed their conduct to the precepts of the 
laws, they used them. If they did those acts which the laws required 
they should perform, and abstained from the commission of those acts 
which the laws forbade, they used the laws. To make the law in use, 
it is not considered essential that there should have been an offender to 
whom the vindictive part was applied.” 2, 257. Brice v. The State. 
1814. 

Entry-Taker—Laws, Obsolete and Repealed—North Carolina Statutes. 
—Wright, J.: “The Act of 1777, ch. 1, sec. 18, provides that if entry-taker 
be desirous to make any entry of lands in his own name, such entry 
shall be made in its proper place before a justice of the peace of the 
county—not being a surveyor or assistant—which entry the justice shall 
return to the County court at their next sitting; and the County court 
shall insert such entry, and every entry made by or for such entry-taker 
in any other manner than is herein directed, shall be illegal and void, and 
any other person may enter, survey, and obtain a grant for the same 
land. It is argued that this section of the Act of 1777—if it ever was 
the law of this State—has become obsolete, or been repealed, and, in 
any event, is inapplicable to that portion of the State which lies south 
and west of the congressional reservation line. It seems not to have 
been considered as repealed or obsolete by Messrs. Haywood & Cobb, 
and is preserved in their revisal of the statutes of Tennessee, and not 
embraced in the ‘ table of repealed and obsolete laws/ 2 Hay. & 
Cobb’s Rev., 20, 190. It is clear that it originally applied to the entire 


LAWS IN FORCE—LAWS ABROGATED. 


501 


vacant territory of the State of North Carolina, extending as far west as 
the Mississippi river, and including these very lands. Acts 1777, ch. 31; 
1783, ch. 2, sec. 3 (1 Scott's Rev., 221, 267); 2 Meigs' Dig., 662. And it 
is equally plain that it was in force and use in the State of North Caro¬ 
lina at the time of the passage of the Cession Act of 1789. Tyrell v. 
Mooney, 1 Murphey, 375, 401; Terrell et al. v. Logan, 3 Hawks., 319. 
And, therefore, became a law of the ceded territory and of the State of 
Tennessee upon the adoption of the Constitution of 1796. 

“The Cession Act provides that the laws in force and use in the State 
of North Carolina at the time of its passage shall be and continue in 
full force within the ceded territory until the same shall be repealed or 
otherwise altered by the legislative authority of said territory. And in 
the Constitution of this State, in 1796, it was declared that all the laws 
then in force and use in said territory, not inconsistent with the Consti¬ 
tution, should continue to be in force and use in this Sfate until they 
should expire, be altered, or repealed, by the legislature. The Constitu¬ 
tion of 1834 has a clause to the same effect. We are not able to per¬ 
ceive that this section of the Act of 1777 has expired or become obsolete. 
It is, upon the face of it, perpetual, without limitation or time fixed 
when it shall cease to be in force; and we are bound to give it effect, in 
every case which falls within its provisions, until it is repealed by the 
legislature. Brice v. The State, 2 Tenn., 255, 256. It may be that no 
entry has been made under its requirements, even for half a century. 
But how are we to know that? The record does not inform us how the 
fact is. And if it were so, we do not understand that a statute can be 
repealed by non-user. The want of individual cases under it, or the 
existence of a series of cases in violation of it, ought not, we appre- 
heud, to destroy the law. Dwar. on Stat., 9 Law Library, 29, top page; 
Brice v. The State, 2 Tenn., 255, 256, 257, 258. 

“Then has it been repealed or so altered by the legislature as to 
enable us to dispense with its provisions? It is insisted it has upon 
various grounds. First: It is said the Act of 1777, if ever of iorce, 
being so only by the Cession Act and Constitution of 1796, any alteration 
of it being by the legislative authority of the territory or State, though 
it did not touch the eighteenth section, would satisfy the Cession Act 
and the Constitution, and put an end to the entire act; and that such 
alteration having been made as early as 1799 and 1801, this section is 
not now in force in this State, nor has been for half a century. This 
position is untenable. The repeal of a statute may be total, or only 
partial, according to the will of the legislature; and we know of no 
difference, in this respect, between the statute of the State of North 
Carolina, made of force here by the Cession Act and Constitution, and 
one of our own enacting. And that there is no such difference will 
appear from the authority ot Brice v The State. See also The State v. 


502 


TENNESSEE CONSTITUTIONAL LAW. 


Patterson, 2 Ired., 356. Unless the section itself has been repealed or 
altered, it must be declared in force.” 39, 328. E'gnew et al. v. Coch¬ 
rane et al. 1859. 

Section 5 of the Schedule of 1865. — NICHOLSON, J.: “If the Schedule 
to the amended Constitution ever had the effect of making null an exe¬ 
cution or levy thereon, issued and levied in pursuance of the Act of 
1861, which we are far from conceding, yet it is manifest that the fifth 
section of the schedule of 1865 was abrogated by the first section, art. 
11, of the Constitution of 1870, by which it is provided that ' ordinances 
contained in any former Constitution, or schedule thereto, are hereby 
abrogated.’ This includes, and was clearly intended to include, the sec¬ 
tion in the schedule of 1865, which declared 'all laws, ordinances and 
resolutions, as well as all acts done in pursuance thereof, under the 
authority of the usurped State government of Tennessee, on or after 
the 6th of May, 1861, unconstitutional, null and void from the beginning/ 
The abrogation of this section by the Constitution of 1870 removes all 
doubt as to the validity of the execution and the levy thereof, and of 
the satisfaction of the judgment as to the security.” 3 53, 81. Fuller 
& Mitchell v. McFarland , AdmW. 1871. 

State and Federal Constitutions—Nature of State Powers—Schedule 
of 1865.— “Another question presents itself in reference to the 
validity of the law passed by the legislature of 1862. As a matter of 
history, we know that the country was then engaged in the late civil 
war. Tennessee was one party to the strife, by the action of her peo¬ 
ple, and was declared to sustain the enemy relation to the United States 
by the well-known proclamation of the president of the United States, 
made in pursuance of a law of congress. By the schedule of the 
amendments to the Constitution of the State, of 1865, it was declared 
that all laws and ordinances passed from and after the 6th of May, 1861, 
were null and void, we suppose upon the ground either of the opinions 
held by the members of the legislature on the questions between the 
parties to the war, or the fact that the State was then in rebellion against 
the United States, or perhaps on the theory that the members of that 
legislature were engaged in acts of treason, or were themselves traitors. 
This ordinance was abrogated by sec. 3, art. 11, of the Constitution of 
1870, thus leaving the validity of such laws as were passed by the legis¬ 
lature during the period of the war to be tested upon general principles, 
applicable to laws passed by legislative bodies under our system of writ¬ 
ten constitutions, which constitutions are the tests of the validity of all 
legislation. We need only to say with reference to the theory that all 
acts passed by the legislatures of States engaged in rebellion against 
the United States were void, that it is one which, so far as we can see. 


1 See also Rice et al. v. O’Keefe et al., 53, 639. 



LAWS IN FORCE—LAWS ABROGATED. 


503 


is based upon no principle of general law, nor upon any growing out of 
the peculiarities of our constitutional system of government, and that 
the schedule of the Constitution of 1865, as to this subject, was a purely 
arbitrary declaration of the will of the body which promulgated it. 

. “It must be sustained, if at all, upon the idea that a State of this 
Union is such, and can exercise its powers as such—in a word, can have 
legal or constitutional existence—only by virtue of its relation to and 
connection with the Federal Union, as one of its integral parts. In this 
is ignored the principle that underlies our entire theory of government, 
both State and Federal, as viewed in the Constitution of the United 
States, on almost every page, that the States composing our Federal 
Union are well defined entities—constitutional organizations—having life 
independently of their connection with the Federal Union. This princi¬ 
ple is distinctly recognized in the preamble to the Constitution of the 
United States: ‘We, the people of the United States, in order to form a 
more perfect union/ etc.; the union of the States having been found 
imperfect under the old Articles of Confederation. We need not enu¬ 
merate the various clauses of the Constitution of the United States in 
which the principle is recognized. We need but refer to sec. 10 of art. 
1, containing prohibitions upon the powers of the States, and among oth¬ 
ers, that no State shall enter into any treaty, alliance or confederation; 
make any thing but gold and silver a legal tender; pass any bill of 
attainder, ex post facto law, or law impairing the obligation of contracts; 
or without consent of congress lay any imposts or duties, etc.; and then 
to the tenth article of the amendments to the Constitution: ‘The powers 
not delegated to the United States by the Constitution, nor prohibited 
by it to the States are reserved to the States respectively or to the 
people.’ 

“It will be seen from these clauses of the Constitution, that the 
States are referred to distinctly in connection with acts of government; 
that the law-making power of the States is distinctly recognized as 
existent, by the Constitution of the United States, and certain well 
defined limitations placed upon its action. Upon sound principles of 
construction, the States could well have exercised all legislative powers, 
and so far as the Federal government was concerned, done all things by 
them deemed proper and not prohibited by the Constitution of the 
Uuited States, without the provision in article 10 of the amendments. 
But that article distinctly lays down the principle that ‘the powers not 
delegated to the Uuited States, nor prohibited to the States, are reserved 
to the States respectively or to the people.’ It will be seen from these 
clauses that pre-existing organized governments are recognized, having 
within their respective territorial limits independent spheres of action, 
and acting within these, not by virtue of their relation to the Union 
created by the Federal Constitution, but from their own original author- 


504 


TENNESSEE CONSTITUTIONAL LAW. 


ity derived, according to our American ideas of government, from the 
peoples by whom they were established. Such organized State govern¬ 
ments, with all legislative powers not prohibited by the Constitution of 
the United States, are thus clearly recognized by that instrument. 
These governments are not in any manner affected in the exercise of 
their powers by the existence of the Federal Union, except by the 
grants and prohibitions of the Federal Constitution; and as their exist¬ 
ence as State governments is not derived from the Federal Constitution, 
nor their powers as such from their relation to the Federal Union, or its 
government, simply certain powers formerly possessed being delegated 
in the Federal Constitution, leaving the reserved powers to be held as 
they and the delegated powers previously were—by virtue of the original 
sovereignty of the States, it is manifest that within its sphere of action 
we must look to other and different tests as to the validity of the laws 
of a State than the simple one of connection with the United States. 

“ in fact, the relation of the State governments to the United States, 
except in reference to the grants of power to the United States and the 
prohibitions upon the power of the States, has no bearing whatever 
upon the question of what powers may be exercised by the State legis¬ 
latures; nor does such relation, except as indicated, in any way affect 
or modify the action of the State legislatures in reference to any matters 
within their spheres of action. We might refer to the series of unques¬ 
tioned decisions of the Supreme court of the United States, holding that 
the prohibitions of the amendments to the Constitution— e. g., that no 
one shall be twice put in jeopardy of life or limb, etc.— have no appli¬ 
cation to the States, but only to the government of the United States, 
the States being left to protect their citizens from oppression by the 
provisions of their own Constitutions. See case of Barron v. City of 
Baltimore, 7 Pet. R., etc. It follows, necessarily, that the fact that the 
normal relations of the State of Tennessee to the United States were 
temporarily suspended during the war, could not have had the effect to 
render void an act of her legislature upon a question in no wise con¬ 
nected with the federal relations, but of purely local interest, the power 
to legislate upon such questions not being derived from the federal 
Union or its government, nor prohibited by the federal Constitution.” 
54, 699. Frierson's Ex’rs v. General Assembly Presbyterian Church. 
1872. 

This Clause Construed.—N icholson, J.: “ This provision was intended 
to except from the general operation of the Constitution such laws then 
in force as would expire at some subsequent time prescribed by the 
Constitution.” 56, 801. 1 Brinkley v. Bedford. 1872. 


See same case, art. 7, sec. 5. p. 475; Schedule, sec. 1, clause 1. 



CONSTITUTION—WHAT IT SHALL NOT AFFECT. 


505 


CONSTITUTION—WHAT IT SHALL NOT AFFECT. 


Art. 11, Sec. 2. Nothing contained in this Constitution 
shall impair the validity of any debts or contracts, or affect any 
rights of property, or any suits, actions, rights of action, or 
other proceedings in courts of justice. 1 [Same as Const, im, art. 11 
sec. 2.1 

Construction of Constitution — This Section and Art. 11, Sec. 11, 
Do Not Conflict — Homestead. — DEADERICK, J.: “In construing statutes, 
and equally in the construction of the Constitution, the words are pre¬ 
sumed to be used in their natural and ordinary sense, and if a technical 
word is employed, it must be presumed to have been used in its tech¬ 
nical signification. Debt, then, can uot be regarded as a synonym of 
tort. 

“But the Constitution not only declares that nothiug therein shall 
impair the validity of any debts or contracts, but it adds, or affect any 
rights of property, or auy suits, actions, or rights of action, or other 
proceedings in courts of justice. 

“It is argued that to hold that the homestead is not liable in this 
<5ase, would be to violate that part of this section which says that the 
rights of action, actions, suits, and other proceedings, shall not be 
affected, because, it is alleged, while the suit at law was being prosecuted, 
and the right of action being enforced by legal proceedings, this property 
was liable for the satisfaction of whatever judgment might be recovered. 
This provision as to suits, actions, or rights of action, it appears to us> 
from the context, has reference to the proceedings in court for the 
enforcement of the right, and was intended to hinder the legislature 
from obstructing litigants in the prosecution of their suits or actions 
and as a declaration that nothing in the Constitution was intended to 
interfere with the regular administration of the law by the courts. 
Such seems to be the meaning intended by the language, ‘any suits, 
actions, rights of action/ the immediately succeeding language being, 
“‘or other proceedings in courts of justice. 1 This construction removes 
all seeming couflict between this section and the section securing home¬ 
steads to heads of families. . . . This court has held, under the Con¬ 

stitution of the United States, the homestead could not be exempted 
from sale for debts created before the Constitution of 1870 was adopted. 
But, as before stated, complainant’s claim was no debt when this right 
accrued. 

“The language is unmistakably clear, exempting the homesteads 
from forced sales in all cases but those specified. It was manifestly the 
intent of the instrument to secure this right of homestead, and to shield 
it from all liabilities except those mentioned. Cooley Const. Lim., 58, 


1 See Hazen Union Bank, art. 1. sec. 20, p. 182. 



506 


TENNESSEE CONSTITUTIONAL LAW. 


says if different parts of the Constitution ‘seem to conflict, the courts 
must harmonize them, if practicable, and lean in favor of a construction, 
which will render every word operative, rather than one which may 
make some idle and nugatory. One part is not to be allowed to defeat 
another, if by any reasonable construction the two can be made to stand 
together.’ The two portions are not really in conflict, as we think the 
construction placed upon sec. 2, as to suits, actions, etc., is the just 
interpretation of the language employed, and neither a forced or unnat¬ 
ural construction.” 74, 408. Parker v. Savage et al. 1880. 

Art. 11, Sec. 3. Any amendment or amendments to this 
Constitution may be proposed in the senate or house of repre¬ 
sentatives; and if the same shall be agreed to by a majority of 
all the members elected to each of the two houses, such proposed 
amendment or amendments shall be entered on their journals, 
with the yeas and nays thereon, and referred to the general 
assembly then next to be chosen, and shall be published six 
months previous to the time of making such choice; and if, in 
the general assembly then next chosen as aforesaid such pro¬ 
posed amendment or amendments shall be agreed to by two- 
thirds of all the members elected to each house, then it shall be 
the duty of the general assembly to submit such proposed 
amendment or amendments to the people in such manner and 
at such times as the general assembly shall prescribe. And if 
the people shall approve and ratify such amendment or amend¬ 
ments by a majority of all the citizens of the State voting for 
representatives voting in their favor, such amendment or amend¬ 
ments shall become a part of this Constitution. When any 
amendment or amendments to the Constitution shall be pro¬ 
posed in pursuance to the foregoing provisions, the same shall 
at each of said sessions be read three times on three several 
days in each house. The legislature shall not propose amend¬ 
ments to the Constitution oftener than once in six years. (The 
legislature shall have the right, at any time, by law to submit to 
the people the question of calling a convention to alter, reform 
or abolish this Constitution; and when, upon such submission, 
a majority of all the votes cast shall be in favor of said proposi¬ 
tion, then delegates shall be chosen and the convention shall 
assemble in such mode and manner as shall be prescribed.) 

[Const. 1834, art. 11, sec. 3, was same as above, except that the clause in 
parenthesis was not in that instrument.] 

[Const. 1796, Art. 10, Sec. 3: “That whenever two-thirds of the general 
assembly shall think it necessary to amend or change this Constitution, they 
shall recommend to the electors at the next election for the members of the 
general assembly to vote for or against a convention. And if it shall appear 
that a majority of all the citizens of the State voting for representatives have 
voted for a convention, the general assembly shall at their next session call a 
convention to consist of as many members as there be iu the general assembly, 
to be chosen in the same manner, at the same place, and by the same electors 
that chose the general assembly, who shall meet within three months after 
the said election for the purpose of revising, amending, or changing the Con¬ 
stitution.”] 


DIVORCES— LOTTERIES. 


507 


DIVORCES. 

Art. 11, Sec. 4. The legislature shall have no power to 
grant divorces, but may authorize the courts of justice to grant 
them for such causes as may be specified by law; but such laws 
shall be general and uniform in their operation throughout the 
State. [Same as Const. 1834, art. 11, sec. 4.] 

Commission Court — Divorce Suits.— COOPER, J. : “The argument is 
that this provision requires the submission of the subject of divorce to 
the constitutional courts. We know, however, as matter of history, 
that the legislature retained to itself the power of declaring a dissolu¬ 
tion of the bonds of matrimony long after it had surrendered to the 
courts all other branches of judicial business, and that the object of this 
section of the Constitution was to relegate the subject of divorce, like 
other civil business of a judicial nature, to the ‘courts of justice.* 
Courts of justice are, by the Constitution, authorized to decide all civil 
cases, as well as to grant divorces. And other civil cases may, notwith¬ 
standing, be submitted by consent to the decision of the Commission 
court. The mere fact, therefore, that constitutional courts are author¬ 
ized to grant divorces, does not necessarily prevent the legislature from 
authorizing a special tribunal to grant divorces in cases submitted by the 
parties.” 70, 178. Hurt v. Hurt. 1879. 


LOTTERIES. 


Art. 11, Sec. 5. The legislature shall have no power to 
authorize lotteries for any purpose, and shall pass laws to pro¬ 
hibit the sale of lottery tickets in this State. 1 [Same as Const. 1834, 
art. 11, sec. 5.] 

Grant of a Lottery — Whether a Contract — Vested Rights.— Bass 
and others made a contract with Erwin and others to open Union street, 
from College to Market; they were to be compensated out of the pro¬ 
ceeds of a lottery, authorized by an Act of 1831, to raise money for that 
purpose; part of the money had been thus raised when the Constitution 
of 1834, which prohibited lotteries, was made. In 1836 the legislature 
passed an act prohibiting all lotteries and to repeal all laws authorizing 
lotteries. The “trustees” with whom Bass, Green and Elliston had the 
contract, then refused further to draw the Union-street lottery, so that 
Bass, Green aud Elliston, if they could not have been compelled to draw 


1 There was no clause in the Constitution of 17% prohibiting lotteries in this State, yet in 10, 
272, Catron (Whyte concurring and Peck dissenting) held : “ To vend or buy tickets in a private 
lottery is gaming, within the meaning of our statutes; and in this, as in other offenses inferior to 
felony, there are no accessories, all concerned in their commission being principals. . . . The 
Act of 1817, eh. 61. sec. 7, declaring all persons convicted of gaming disqualified to hold office for 
five years, is constitutional, and it is error in the court, after conviction, not to make such dis¬ 
qualification a part of the judgment, which error it is the duty of the attorney general to correct 
by appeal.” See also McGimpsey and Wife v. Booker et al., 13, 139, decided in 1833 ; 65, 480 ; 81, 
233; and 88, 553. 



508 


TENNESSEE CONSTITUTIONAL LAW. 


it, would have been losers by reason of having opened the street. 
They, therefore, on the 18th of October, 1838, tiled a bill in the 
Chancery court at Franklin, against Henry Hollingsworth, the mayor of 
the city, Robert Woods, and John P. Erwin, stating all the above facts, 
praying that the defendants might be compelled, by a decree of the 
court, to cause the lottery to be drawn, till out of the proceeds a sum of 
money might be made, which, when added to the sum already paid the 
complainants, would be equal to the sum expended by them in opening 
the street, etc. 

Reese, J.: “ We will consider the nature of the interest which the 
defendants had, as the trustees of the Union-street lottery, by virtue of 
the provisions of the Act of 1831, ch. 69 (private acts), for the purpose of 
ascertaining whether art. 11, sec. 5, of the reformed Constitution, or the 
forty-seventh chapter of the Acts of 1834, passed in pursuance thereof, 
can be held to have legally terminated that interest. So early as 1809, 
ch. 39, the drawing of a lottery within this State was prohibited by legis¬ 
lative enactment, and by the infliction of severe penalties. By judicial 
construction upon that act, and the several acts to prevent and punish 
gaming, all persons concerned in lotteries were held to be guilty of gam¬ 
ing, and to be punished by indictment as for that offense. Lotteries 
then stood reprobated by legislative enactment and by judicial decision 
as contrary to public policy and to good morals; and a wise and 
enlightened public sentiment everywhere sustained the enactment and 
the decision. Under such circumstances, we ask, what was conferred 
upon the defendants by the Act of 1831, ch. 69? Nothing, certainly, but 
an immunity, in that particular instance, and for the specified object, from 
penalties and indictments; an indulgence granted to them to perform 
acts which were, in general, held to be against public policy and good 
morals; a permission to do that for the doing of which all others would 
have been subjected to fine and imprisonment. If, then, before the 
defendants had done anything under the Act of 1831, this privilege con¬ 
ceded to them of gaming without liability to criminal prosecution until 
they had realized a specified amount of profits had been abrogated by a 
subsequent legislature, and they had been placed upon the same ground 
with all other citizens, of what could they have complained? Could 
they have, on just grounds, alleged that a contract had been impaired 
or a right divested? See 3 Story, secs. 1379, 1385. For this, surely, no 
one will contend. If, then, they had organized a scheme, and had drawn 
one or more classes of the lottery, as the bill alleges was done, and, so 
to speak, one or two games had been played and finished, and the legis¬ 
lature finding a pause in their proceedings, when no purchaser of a 
scheme and no holder of a ticket could be injuriously affected, and, 
availing themselves of this pause, had prohibited the further exercise 
of this extraordinary privilege, could the defendants be heard to object 


USURY. 


509 


to the prohibition upon the ground that they had not realized all the 
profits which they had been promised, and which they expected? Cer¬ 
tainly not. 

“ In the precise state above supposed stood this matter when the 
convention, in 1834, adopted” (this section). . . . “This was itself a 
prohibition, and was announced to the complainants before the forma¬ 
tion of their contract with the defendants. And again, although that 
contract is dated before the Act of 1835, ch. 47, yet neither the bill nor 
the answer alleges that the complainants, before the passage of that act, 
were at any trouble, made any advances, or incurred any liability what¬ 
ever. They are, therefore, in no better situation, with regard to the 
repealing law, than the defendants. If we had taken a different view of 
both the points above discussed, still we could by no means have decreed 
a specific execution of the contract, and ordered the drawing of a lot¬ 
tery, which might, under the provisions of the Act of 1835, ch. 47, have 
subjected hundreds of our citizens—the drawers of the lottery, the ven¬ 
dors of tickets, the parties, publishers, and circulators of the scheme, 
and even the ticket-holders themselves—to prosecution by indictment.” 1 
19, 426. Bass v. Mayor etc. of Nashville. 1838. 

Art. 11, Sec. 6. The legislature shall have no power to 
change the names of persons, or to pass acts adopting or legiti¬ 
mating persons, but shall, by general laws, confer this power 
on the courts. 2 


USURY. 


PAGE. 

Contract for Payment of Interest Not Ex¬ 
ceeding 10 Per Cent Per Annum.... 509 
Causes that Gave Rise to this Section.511 


PAGE. 

Act Authorizing Issuance of Bonds at 

Higher Rate than 6 Per Cent is Void 511 
Building and Loan Association Contract 

Not Usurious.514 


Art. 11, Sec. 7. (The legislature shall fix the rate of interest, 
and the rate so established shall be equal and uniform through¬ 
out the State;) but the legislature may provide for a conven¬ 
tional rate of interest, not to exceed ten per cent per annum. 3 
[Const. 1834, art. 11, sec. 6, contained only the clause in parenthesis.] 

Contract for Payment of Interest Not Exceeding Ten Per Cent Per 
Annum— Not Class Legislation.— JOHN C. GaUT, Sp. J.: “The Constitu¬ 
tion imposes no restraint or limit upon the legislature upon the subject 
of interest, except that it declares that ‘the legislature shall fix the 
rate of interest, and the rate so established shall be equal and uniform 
throughout the state/ In pursuance of said provision of the Constitu¬ 
tion, the legislature, by third section of the Act of 1835, ch. 50, fixed the 
rate of interest at six per cent per annum, and at that rate for a longer 


* See 23 , 262. 

• See 67 , 242, aud 68 , 243. 


a See Hazen v. Union Bank, art. 1, sec. 20, p. 183. 






510 


TENNESSEE CONSTITUTIONAL LAW. 


or shorter period. That was equal and uniform throughout the State. 
The rate of interest is not restrained by the Constitution. The legis¬ 
lature has at all times the power to increase or diminish the rate of 
interest, in their discretion. They can alter, amend or repeal the law 
in relation to interest. They are required by the Constitution to fix a 
rate of interest which shall be equal and uniform throughout the State ; 
and this is the only restraint upon the legislature. The six per cent 
interest law of 1835 remained unrepealed and unchanged until the Act 
of the 21st of February, 1860, when the legislature enacted that from 
and after the I st day of September, 1860, it should be lawful, whenever 
any person or persons should contract for the loan of money, for the 
lender or lenders, his or their assigns or representatives, to contract for a 
rate of interest, up to the time of payment, not to exceed ten per cent 
per annum; provided such agreement appears upon the face of the 
bond, note, bill or such other written instrument. And the second sec¬ 
tion declares that the rate of interest now established by law shall con¬ 
tinue equal and uniform throughout the State, as heretofore; that is, at 
six per cent, except in cases of money loaned or in the renewal of notes 
for money loaned, when the parties should be privileged to contract for 
a rate up to ten per cent by inserting such an agreement in the face of 
the bond, bill, note or other written instrument. 

“We think that the Acts of 1835 and I860 1 should be so construed 
together as one act, in reference to the Constitution. The Act of 1860 
is not a repeal of the Act of 1835, but an amendment. The second sec¬ 
tion of the Act of 1860 expressly declares that the rate of interest now 
established by law shall continue equal and uniform throughout the 
State, as heretofore; and no greater amount than six per cent shall be 
paid on any contract or obligation, unless agreed on by the parties 
according to the provisions of the first section; that is, in any contracts 
for the loan of money or in the renewal of debts for money actually 
loaned, it should be lawful for the parties to such contracts to agree 
upon a rate of interest to be paid, not to exceed ten per cent per annum, 
until paid, provided such agreement is evidenced by the bond, bill, note 
or other written instrument. It is an amendment of the Act of 1835, so 
far as to allow the parties to contract on the loan of money or in the 
renewal of debts for money actually loaned, to stipulate for and receive 
a rate of interest not to exceed ten per cent per annum. And the ques¬ 
tion recurs: Is said amendment in violation of the Constitution? We 
think not. We believe that six per cent per annum is the fixed, estab¬ 
lished, uniform rate throughout the State in the absence of a special 
contract of the parties concerned. And that, by the said Act of 1860, 
the general law was so amended as to make it lawful, in all cases on the 
loaning of money, or in the renewal of debts for money actually loaned, 


1 Code 1858, 1944 et seq.; T. & S., 1944 et seq.; M & V., 2701 et seq. 



USURY. 


511 


to agree upon any rate of interest to be paid, provided that it did not 
exceed a rate of ten per cent per annum, and provided such agreement 
was evidenced in the written contract. And we think said amendment 
is equal and uniform throughout the State. The right aud privilege 
extended by the Act of 1860 to all persons contracting for the loan of 
money, or in the renewal of debts for money actually loaned, to contract 
for a rate of interest not to exceed ten per cent per annum, was equal 
and uniform throughout the State. . . . 

“But it has been insisted in argument that the Act of 1860 is class 
legislation; that it suspends the general law of the land for the benefit 
of a class of individuals. We are unable to concur with the counsel in 
the solidity of the argument. We are unable to see wherein it is class 
legislation, or that it suspends the general law of the laud for the benefit 
of a class of individuals. The law is equal aud uniform throughout the 
State to all persons, both lenders and borrowers, who could bring them¬ 
selves within the provisions and supposed benefits of the law—that is to 
say, to every member of the community in this State who might have 
money to lend, or loaued out, without regard to his, her or their condi¬ 
tion, business, vocation or profession in life. No particular class is to 
be benefited or favored to the exclusion of auy other, but every person 
in the State may partake of the supposed benefits intended to be con¬ 
ferred by the law. It is equal to all.” 42, 386. Caruthers Ex’rs v. 
Andrews. 1865. 

Causes that Gave Rise to this Section.— BURTON, Sp. J.: “Ever since 
the Act of 1819 the statutory law has been that when money is loaned 
at more than six per cent, the party could recover the principal and 
simple interest, and the excess over six per cent alone was usury. This 
was a radical change of the North Carolina Act of 1741, chapter 11, 
clause 2, before that time in force, by which contracts whereby more 
than six pounds in the hundred were taken for the use of money loaned 
per annum was declared to be utterly void. Notwithstanding the Act 
of 1819, the legislature had grauted to banks and to other moneyed 
corporations the privilege of taking more than six per cent for the use 
of money, and these special charters, or rather this privilege granted to 
them, gave rise to sec. 6, art. 11, of the Constitution of 1834. . . . 
That the object of this provision was to inhibit the legislature from 
granting to banking corporations the privilege of taking a greater rate 
of interest than was allowed to individuals, is manifest from the jour¬ 
nals of the convention. The journal of the convention of 1834, p. 161-2.” 
61, 176. Perkins v. Watson , Trustee. 1872. 

Act Authorizing Issuance of Bonds at Higher Rate than Six Per Cent 

is Void_Borrower and Lender—No Discrimination Between—Uniform 

Rate of Interest—Special Legislation. — FREEMAN, J.: “The legislature 


512 


TENNESSEE CONSTITUTIONAL LAW. 


that met immediately after the adoption of the Constitution of 1834, in 
pursuance of this requirement of the Constitution, passed the ’Act of 
1835, ch. 50, sec. 3 of which provides that ‘the legal rate of interest shall 
be hereafter, as heretofore, six per cent per annum, and at that rate for 
a longer or shorter period,’ and the same provision substantially is found 
in the Code, section 1944. ... In the act before us we have a dif¬ 

ferent rate of interest provided for as to the one hundred thousand dol¬ 
lars in bonds to be issued by the Memphis Overton Hotel Company. Can 
this act be sustained as equally in pursuance of the same article of the 
Constitution, or, as authorized by any other provision of the Constitu¬ 
tion? This is the question. . . . The provision of the Constitution 

clearly meant that the legislature should provide by a general law r 
operative alike upon all, and throughout the entire State, for a uniform 
and equal rate of interest. Is the act in question conformable to this- 
requirement? It certainly is not—under section 8 of the Bill of Rights,, 
as that section has been uniformly construed by our courts—the law of 
the land; that is, a general and public law, equally binding, in some 
aspects of it, upon every member of the community. . . . It is- 
operative only in favor of, or upon, the Memphis Overton Hotel Com¬ 
pany, and it authorizes that company to issue its bonds at a rate of 
interest higher than and different from that prescribed by the general 
statute of the State, by which the rate of interest is fixed and made 
uniform and equal throughout the State. No other person, whether 
natural or artificial, has the right, under this law, to issue paper bearing 
this rate of interest. It, then, is the grant of a right (whether it is a 
privilege or not need not be discussed here) to this company to do what 
it could not do bindingly except under the provisions of this enabling 
act of the legislature. The very fact that the act of the legislature had 
to be passed for this purpose settles, we think, conclusively, that it is- 
a law passed in derogation of the general law of the land to enable 
something to be done that could not be legally done without such an 
act, so as to effectuate the end desired; that is, the raising of means to 
complete the hotel then in course of erection. . . . 

“While there is no prohibition upon any oue to lend to this com¬ 
pany, yet practically, and as a matter of fact, only a very small portion 
of the people of the State could enjoy this privilege; and although that- 
number is not defined or specifically designated by the law, yet it is con¬ 
fined to the lenders of one hundred thousand dollars, and to this corpora¬ 
tion alone. It is a special privilege granted to these money-lenders, be 
they many or few, with the certainty that it must necessarily be limited to 
and enjoyed by a few of the people of the State. If this be not grant¬ 
ing a special privilege to a favored class, practically exclusive of others 
not of that class, we confess we are unable to see what would be. The 


1 T. & <3., 1944; M. & V., 2701. 



USURY. 


513 


privilege might have been more definite as to the individuals composing 
the class, but it could not have been more certain in its operation in 
favor of a class, and that limited to a comparatively small number of 
the citizens of the State who should lend to this corporation. We may 
admit that usury laws, passed for the punishment of the offense of 
taking more than six per cent interest, inflict penalties only on the 
lenders; but it was intended by the Constitution not only to restrict 
lenders, but at the same time to confer affirmatively a privilege on the 
borrowers. We cannot assent to this view, because it would involve the 
absurd conclusion that while a man might not lend money at over six 
per cent or the other uniform rate to be fixed by the legislature, any 
man has granted him, by implication, a right to borrow at auy rate he 
might choose, or might be able, and that the Convention intended to 
grant, by implication, the right for one man to give what no mau should be 
authorized to receive. In a word, we cannot see how a man may be said 
to have the right to be a borrower under the law at more than six per 
cent interest, when there could by law be no lender at a higher 
rate. . . . 

“The legislature certainly intended, by our usury laws, no grant of a 
privilege or right to the borrower, and the Constitution most certainly 
did not intend to require the legislature merely to fix the rate of interest 
which lenders might take, but at the same time to leave the legislature 
authority to allow, as a matter of right, by the same law, the borrower 
to pay a different rate. The legislature under this clause of the Consti¬ 
tution could as well, if it had been deemed best, have inflicted the pen¬ 
alties of usury upon the borrower as on the lender, and no one could have 
doubted that the law was constitutional and in strict conformity to the 
letter as well as the spirit of section 6, art. II, of that instrument, as 
intended to operate, and as operating, effectually to prevent parties 
taking more than the rate of interest allowed by law. The true position 
is, that the convention did not intend to discriminate in favor of the one 
class as borrowers aud against the other class as lenders, by this provision ; 
but only to fix a uniform rate for both. And that body never once con¬ 
ceived the idea that there could be a borrower authorized by law to bor¬ 
row, without a lender authorized to lend on the same terms. The object 
of the convention was to fix the rate of interest at one uniform stand¬ 
ard, and that that rate should be, when paid by the borrower, the precise 
sum which the lender was entitled by law to receive. 

“ We need not further notice the fallacy that lies under the proposi¬ 
tion that borrowers had a legal right to borrow at ten per cent, but 
lenders had not the right to lend at ten per cent; but we propose for a 
moment to test the argument drawn from the proposition that this stat¬ 
ute only exempted the lenders from the penalties of usury. If so, it is 
then a law passed for the special benefit of lenders of money to this 


33 


514 


TENNESSEE CONSTITUTIONAL LAW. 


corporation. Then it is in the very teeth of the prohibition of sec. 7 of 
art. 11. . . . Here, then, is a suspension of a general law for the 
benefit of individuals, and a law passed for the benefit of individuals, 
inconsistent with the general laws of the land. These individuals are, 
on the theory of the argument, the capitalists who may lend their money 
to the Memphis Overton Hotel Company, and not all who may ever desire 
to do so, but only the few who shall lend the sum of one hundred thou¬ 
sand dollars on the particular bonds authorized by this single act. If 
this is not prohibited by this clause of the Constitution, then what law 
is? If this law can be sustained on this ground, why may not any indi¬ 
vidual liquor dealer in Tennessee be allowed to tipple without a license, 
by special law? Why may not the leading faro dealers of the State, to 
the exclusion of smaller dealers, be allowed, by special law, to deal faro, 
in violation of the general law of the land, under the specious guise of 
relieving penalties imposed by the general statute? And so on. Why 
may not anything be authorized to any particular class, however vio¬ 
lative of sound morals or the general law of the land? We can not 
assent to the correctness of reasoning that leads to these results.” 59, 
107. McKinney v. Memphis Overton Hotel Co. 1873. 

Building and Loan Association — Contract Not Usurious. — COOPER, J., 
held: “A contract between a building and loan association, organized 
under the Act of 1875, ch. 142, secs. 5 and 14 (M. & V., 1742, et seq.), and 
one of its members, by which the association advances money to the 
member upon the anticipated value of his stock when the accumulations 
shall bring all the stock to par, upon a premium bid by the member in 
open competition for the fund, and the member agrees to continue to 
pay his monthly dues on the stock, and to pay in addition monthly 
installments on the whole amount bid for, equivalent to interest at the 
rate of six per cent per annum until the assets of the association reach 
the par value of the stock, and secures his compliance with these terms 
by a note for the amount bid off and a deed of trust on realty, is not 
usurious.” Cooke, J., dissented. 82, 677. Patterson v. Workingmen's 
B. & L. Ass'n. 1885. 


CLASS LEGISLATION. 


515 


CLASS LEGISLATION. 


Law In General. 


Partial Laws. 


PAGE. 


This Section Construed in Connection with 

Art. 1, Sec. 8.326 

Privilege—Sense in Which this Term is 

Used in this Section. 321 

Corporation Can Not Complain at Remedy 

Provided by Itself. 59 

Statute — Uuconstitutionality—How to be 

Shown.522 

Statute—How Construed when of Doubtful 

Meaning. 524 

Object and History of this Section—Legis¬ 
lative Power—Power to Grant Char¬ 
ters with Exemption from Taxation 

—Internal Improvements.529 

Charter Exemptions Discussed. 534 

Last Clause Construed in Connection with 

Other Provisions.537 


This Section — History — Meaning — Corpo¬ 
rations—Private—Municipal.. 541, 544 


PAGE. 

Railroads — Unfenced — Liability — Act of 
1891, Ch. 101, Valid—Appraisement 

of Damages—Attorney’s Fee.524 

Act Creating County Commissioners and 

Abolishing Quarterly Court, Void.. 466 
Contract for Payment of Interest Not Ex¬ 
ceeding 10 Per Cent Per Annum- 
Act Permitting Not Class Legislation 509 
Act Authorizing Issuance of Bouds at 
Higher Rate than 6 Per Cent is Void 
— Borrower and Lender —No Dis¬ 


crimination Between. 511 

Bonds—Enabling Act Annulled by Consti¬ 
tution of 1870 Adopted Thereafter. 354 
Railroad a Corporation Purpose—Private 

and Local Affairs.335 

County May be Authorized by Special Law 
to Vote on Question of Subscription 
to Railroad. 350 


Partial Laws. 


Statutes, Public and Private—Taking Pri¬ 
vate Property for Private Use- 
Lunatic Act of 1885, Ch. 88, Void. 51 
Mechanics’ Lien Law of 1889 Not Class 

Legislation. 53 

Levy of Tax by School District Unconstitu¬ 
tional. 367 

Act Exempting Members of Special Militia 

from Jury Service. 383 

Eminent Domain—Benefits to Other Lands 
of Proprietor—Mississippi Act Spe¬ 
cial Legislation. 218 

Act Directing Refunding of Taxes to Cer¬ 
tain Individuals Violates Art. 1, 

Sec. 8, and this Section. 55 

Act Prohibiting Speculation in Witness 

Fees—Art. 1, Sec. 8. 248 

Act Creating County Judge for Certain 
Counties—Exclusive Original Juris¬ 


diction Over Certain Offenses.516 

Act Affecting Right to Sue and Recover 

Personal Property, Partial and Void. 518 
Act Extending Further Time to Tax Col¬ 
lector Releases Sureties. 519 

Cotton Brokers’ Lien. 520 

Banks—Distribution of Effects —Statute 
Limiting Time Partial and Void- 

Delegation of Power.520 

Act Applying to Counties Only that Have a 

Certain Population, Void. 520 

Act of 1885, Ch. 158, Void for Same Reasons 

as Above Case.521 


Barber Sunday Law of 1887, Void, Because 

Class Legislation. 

Druggists’ Relief Act of 1887—Class Legis¬ 
lation Discussed — Questions Re¬ 
served. 


Private Corporations — Creation and 
Control. 

Right to Repeal or Amend Charter May be 
Reserved by Legislature — Vested 


Rights.525 

Charter May be Amended.526 


Chancery Court Can Not Create Corpora¬ 
tions in Absence of Legislative Au¬ 
thority-General and Special Laws. 526 
History of this Provision—Evils Intended 
to be Remedied—Reasons for Adop¬ 
tion. 526 


Privileges, Immunities, Exemptions — Of 
Railroad Corporations. 

Legislature Had Power to Stipulate for Ex¬ 
emption Under Constitutions of 

1834 and 1796. 529 

Immunity Can Not Pass by Sale, When. 532 

Privilege Does Not Include Exemption, but 

is Used in Restrictive Seuse. 532 

Sale of Railroads—Immunities Pass to Pur¬ 
chasers, When. 534 

Act Exempting Corporation from Taxation 
on Certain Conditions — Amend¬ 
ment of Charter. 534 

Exemption as Juror in Charter of Corpora¬ 
tion, Invalid. 536 


Same — Of Banking Corporations. 

Exemption and Transfer of Franchise — 

Legislative Recognition of. 536 

Taxing Shares of Stock —No Exemption 
Under Present Constitution—Ex¬ 
emptions Not Transmissable.537 

Exemption Attaches to Increased Capital 

Stock.539 









































516 


TENNESSEE CONSTITUTIONAL LAW. 


Same —Ol Other Corporations. 

PAGE. 


Exemptions of Turnpike Companies. 329 

Insurance Companies—Acceptance of Char¬ 
ter-Exemptions Withdrawn — Leg¬ 
islative Recognition — Change of ' 

Business. 540 

Water Company — Exclusive Privilege — 

“Public Good.”. 540 

Pool Selling by Chartered Association—Act 

of 1883, Ch. 138, Void. 541 


Private and Municipal Corporations. 

Powers—Increasing and Diminishing—This 
Section Relates to Private Corpora¬ 
tions Only.541, 544 

Additional Justices for Certain Towns—Act 

Providing for, Valid. 463 

Municipal Corporations —Privileges, Im¬ 


munities, and Exemptions. 

Legislature Can Not Delegate to Municipal 
Corporations Power to Grant Ex¬ 
clusive Franchise. 544 

Can Not be Relieved from Duty of Giving 

Bond, Security, etc., for Costs. 545 

Charter May be Repealed at Any Time- 
Control of Local Affairs—Powers— 
Increase and Diminution of—Abol¬ 
ishment . 546 


Municipal Corporations—Privileges, Im¬ 
munities, and Exemptions. 

PAGE. 


Privileges Not Prohibited—Four-Mile Law, 

Valid. 548 

Act Exempting Operation of Four-Mile 

Law in Certain Cities. Void. 549 

Boundaries—Change of, Can Not be by 

Chancery Court.549 

Extension of —Special Laws Affecting — 

General Laws. 549 

Stock Ordinance—Police Power. 550 

Taxing Districts — Statutory Exemption 
from Liability for Defects in Streets 
—Partial Laws—When Violative of 
this Section and when Violative of 
Art. 1, Sec. 8. 59 


Charitable Association. 

Delegation of Power—Grand Lodge I. O. O. 
F. has no Authority to Confer Power 


on Subordinate Lodges. 550 

Privilege Tax on Right of Inheritance Not 
in Conflict With this Section Nor 
Art. 1, Sec. 8. 329 

Taxing Land of United States. 550 


Art. 11, Sec. 8. The legislature shall have no power to 
suspend any general law for the benefit of any particular indi¬ 
vidual, nor to pass any law for the benefit of individuals incon¬ 
sistent with the general laws of the land; nor to pass any law 
granting to any individual or individuals, rights, privileges, 
immunities, or exemptions other than such as may be by the 
same law extended to any member of the community who may 
be able to bring himself within the provisions of such law. 
[Above same as Const. 1834, art. 11, sec. 7.] No corporation shall be 
created, or its powers increased or diminished by special laws, 
but the general assembly shall provide by general laws for the 
organization of all corporations hereafter created, which laws 
may at any time be altered or repealed; and no such alteration 
or repeal shall interfere with or divest rights which have become 
vested. 

[In place of the last sentence of this section the Constitution of 1834, 
art. 11, sec. 7, had the following proviso after the first sentence: “ Provided, 
always, the legislature shall have power to grant such charters of corporation 
they may deem expedient for the public good.” 1 ] 


Partial Laws. 


Act Creating County Judge for Certain Counties. — By the Act of 
February 18th, 1858, cb. 38, the office of county judge was established 
for the counties of Davidson, Shelby, Knox, Montgomery and Wilson. 


J In the case of Mayor etc. of Morristown v . Shelton, (38, 24), decided in 1858, Caruthers, J., 
held: “The acts of 1849, ch. 17, authorizing the County courts, upon certain conditions, to 
create town corporations, is a valid and constitutional enactment.” 

See also 69, 118; 75,164; 81,403; 87,157 ; 78 , 496 ; 83 , 209,215 ; 91.570. 

In the case of Burton v. School Commissioners (19, 590), decided in 1838, Turley. J., said: “ In 
the year 1826 the legislature of this State passed an act to prevent the depreciation of Nashville Bank 
paper, by which provision was made that the notes of the Nashville Bank and its branches should 





















CLASS LEGISLATION. 


517 


By an act ot the same session, ch. 90, passed March 20, 1858, “exclusive 
original jurisdiction of all criminal offenses under the grade of petit 
larceny, committed in the county of Knox, was conferred upon the 
County court.” Caruthers, J. : “It is contended that the Act of Feb¬ 
ruary, 1858, violates the seventh section of article 11 of the Constitution, 
against partial legislation, as it is limited to a few counties, and has not 
a general and equal application to the whole State. We think the act is 
not obnoxious to this objection. The policy of marring the uniformity 
and symmetry of a general system, by the establishment of these loca 1 
courts, may well be questioned, but that the power to do so abides in 
the legislature, we can not doubt. They have exercised it in establish¬ 
ing a Criminal as well as Common Law and Chancery court at Memphis; 
at Nashville, a Criminal court; a Common Law court in Chattanooga, 
and perhaps in other instances. The constitutionality of these acts has 
never, as we are aware, been questioned, although they have exercised 
jurisdiction of the lives and fortunes of individuals. Such acts are not 
partial in the sense of the clause referred to. The office created is open 
to all the cities equally, in the prescribed limits, and the jurisdiction 
conferred operates on all alike, who may fall within its range. That 
provision, it is presumed, only has reference to acts conferring privileges 
and benefits, affecting rights, or imposing penalties. It is with the legis¬ 
lature to determine how many and what kind of courts are required, for 
the administration of justice, and what shall be the character and limits 
of the jurisdiction of each. They may likewise christen the presiding 
officer with any name or title they may consider most appropriate. They 
might have denominated the officer in question a chairman, a chief 
squire, a president or presiding officer, as well as a judge. This could 
not affect the validity of the act by which he was brought into existence, 
or the extent of his jurisdiction.” 37, 513. Moore v. The State . 1858. 


be received at par by the State in pavment of debts due from purchasers of Hiwassee and Academy 
lands, and also in payment of one-half of any debt due to the Bank of the State of Tennessee. 
This statute makes it the express duty of the directors of the Bank of the State of Tennessee to 
loan out said money, as fast as it might be received, for the shortest time and upon the best terms 
practicable, to be repaid in sound or par funds. Session Acts of 1826. Under the provision of 
this statute the plaintiff in error, Burton, who was a debtor to the Nashville Bank, borrowed 
the sum now sued for in Nashville Bank paper, and with it paid his debt to the Nashville Bank ; 
and he now asks to be protected against tne payment of the principal sum thus borrowed upon 
the ground that, at the time the transaction took place, Nashville Bank paper was greatly depre¬ 
ciated, and the contract therefore usurious. It mav be observed that this application comes with 
a bad grace. A debt has been contracted with the Nashville Bank when its paper was at par, and 
this debt was discharged by the money borrowed from the Bank of the State at par, and no loss 
'whatever was sustained by the transaction. Nothing, then, but strict law would justify us in 
reversing the judgment of the court below. This, it is said, is to be found in the decision of this 
court in the cases of the Nashville Bank v. Hays and Grundy & Lawrence v. Morrison, 1 Yer., 243, 
444; these cases determine that a loan of paper money greatly depreciated to be repaid in sound 
funds is usurious. Without questioning the authority of these cases we do not think them appli¬ 
cable to the one now under consideration. The Act of 1826, as we have seen, authorized and 
required the directors of the Bank of the State to loan our Nashville Bank paper to be repaid in 
par funds, when it could be done. The legislature certainly had the power to pass this law, and 
it clearly makes that lawful which otherwise might have beeu unlawful under the decisions 
before referred to. It would involve an absurdity to say that the legislature had required the 
directors of the State Bank to perpetrate a crime, for which they might be indicted, and this 
would be the consequences of a decision pronouncing a loan of Nashville Bank paper, under the 

f >rovisions of the Act of 1826, usurious. We are therefore of the opinion that the contract is 
pgal, and that the plaintiffs in error have no cause of complaint against the judgment of the 
Circuit court, which must be affirmed.” 

Reporter’s Query: Whether the Constitution of 1834 left this power to the legislature. 



518 


TENNESSEE CONSTITUTIONAL LAW. 


Act Affecting Right to Sue and Recover Personal Property—Laws, 
Retrospective, General, and Partial—Remedy.— McKlNNEY, J.: “It is 
insisted that the complainant’s right to recover the slaves is barred by 
the Act of 1855-56, ch. 112, sec. 8, which declares ‘that the title of all 
persons to any slave, or slaves, sold under proceedings of the Circuit, 
Chancery, or County court under the Act of 1827, and to which the heirs, 
distributees, or legatees were not made parties, shall be forever barred, 
unless suit to recover said slave, or slaves, shall be instituted within six 
months after the passage of this act.’ We feel constrained to declare 
this extraordinary enactment to be unconstitutional and void. There is 
much plausibility in the argument, that it violates the spirit of both the 
eighth and twentieth sections of art. 1, inasmuch as it attempts to 
deprive certain persons of their property contrary to ‘the law of the 
land,’ and is also a ‘retrospective law.’ But, perhaps, it is a still more 
palpable infringment of the provisions of sec. 7, art. 11. . . . 

“ Can a more direct violation of the true spirit and meaning of these 
fundamental provisions be imagined than is presented by the section of 
the act above cited? We think not. What does it propose? In some 
instances, prior to the passage of this act, sales had been made of slaves, 
under color of judicial proceedings, professing to have been founded 1 
upon the Act of 1827, but which were, in fact, wholly contrary to law 
and void, communicating no title to the purchaser, and divesting no title 
out of the former owner. By the general law of the land, as it existed 
at the time of these illegal sales, the persons who had thus been 
deprived of their property contrary to law had the unquestionable right 
to bring suit for its recovery at any time within three years after the 
sale. And if the owner happened to be an infant, or under other legal 
disability, his right of action was saved for the period of three years 
after the disability ceased to exist. 

“Now, as a sort of ‘relief measure,’ in cases of such irregular and 
void sales as had been previously made, it is attempted by the Act of 
1856, in the very teeth of the Constitution, ‘to suspend a general law 
for the benefit of (these) particular individual’ purchasers; or, in other 
words, ‘to pass a law for the benefit of individuals inconsistent with the 
general law of the land.’ The act, it will be observed, does not contem¬ 
plate any change of the existing ‘general law’ in the future. It does 
not provide that in all similar cases of irregular sales of slaves which 
may be made after its passage suits shall be brought within six 
months, instead of three years. It is altogether retrospective in its 
operation, referring only to past cases, and having no reference what¬ 
ever to the future. In short, its whole scope and object is simply to 
exempt ‘particular individuals’ or special cases from the operation of 
‘the general law of the land,’ or ‘to suspend the general law’ in their 
favor. This conclusion, it seems to us, is so obvious that argument is 


CLASS LEGISLATION. 


519 


scarcely necessary to make it clearer. There is no force in the argu¬ 
ment that the act affects only the remedy, and not the right. The 
remedy is sometimes so incorporated with the right that it would be 
extremely difficult, if not impossible, to maintain, in any proper sense, 
that the former can be impaired without affecting the latter. But this 
is a point we need not stop to discuss, as it is clear beyond all doubt 
that the prohibitions of the Constitution, in letter and spirit, apply as 
much to remedies as to rights. It was thought proper and necessary 
that the rules regulating the remedy should be equal and uniform in 
their operation as well as those regulating the rights of the citizens. 
And surely this is correct; for if the remedy may be frittered away, 
what is the right worth? 

“The act is likewise subject to the objection, as has been argued, of 
being a partial law. It does not profess to be applicable to all illegal 
sales of slave property, but only to judicial sales, under a particular 
statute; aud not even to all irregular sales uuder that statute, but ouly 
to the special case where ‘the heir, distributees, or legatees were not 
made parties.’ The act seems not to contemplate or provide for other 
irregularities in proceedings, under the Act of 1827, which might avoid 
a sale; nor does it apply to an illegal sale of slaves by the sheriff under 
the ordinary process of fieri facias . If the act had been merely pros¬ 
pective, so as only to operate on sales to be made after its passage, what¬ 
ever might be thought of its unreasonable severity and injustice in extend¬ 
ing indiscriminately to all persons, regardless of the rights of those labor¬ 
ing under legal disabilities, still, so far as regards the question of con¬ 
stitutional power, it might, perhaps, be sustained. But being of the 
character already stated, it is impossible to support it without yielding 
to the legislature the exercise of a power expressly denied by the Con¬ 
stitution.” 39, 282. Morgan et al. v. Reed et al. 1858. 

Act Extending Further Time to Tax Collector Releases Sureties.— 
Nicholson, J.: “Complainants are sureties of David Fry as tax col¬ 
lector for Greene county. On the 26th of April, 1866, the legislature 
passed au act allowing Fry the further time of six months to collect and 
account for the taxes. The question raised by the bill is, does this 
extension of time to the tax collector release his sureties? . . . The 

legislature had protected the principal debtor from suit by forbidding 
the comptroller and attorney general and circuit judge to enforce col¬ 
lection by suit. It is conceded by the attorney general that this prohi¬ 
bition is binding on the officers of the State. The State operates alone 
through its officers. If their hands are tied by a valid legislative act, 
we are unable to understand how the sureties are to proceed to sue and 
collect by suit from their principal debtor a debt which the State has 
forbidden her own officers to collect from him by suit. We understand 
that on the subject of revenue the sovereignty of the State is repre- 


520 


TENNESSEE CONSTITUTIONAL LAW. 


seated by the legislature, and a legislative act is passed which forbids 
the officers of the State to sue the debtor of the State. This operates 
necessarily to protect the debtor from suit, as well by the sureties as by 
the officers of the State. It is true the State, through the legislature, 
may repeal the act of indulgence, but until such repeal it is binding, and 
the State is incapable of enforcing the debt, except through the repeal 
of the act by the legislature. Until such repeal the suspension of the 
right to sue is complete, and the sureties can have no remedy, either 
against the State or the principal debtor. It follows that the legislative 
indulgence given to Fry, as it was not repealed, operated to discharge 
his sureties!” Judge McFarland dissented. 55, 433. Johnson et al. 
v. Hooker, Atty. Gen’l. et al. 1874. 

Lien of Cotton Broker.— NICHOLSON, J., held: “The *Act of 1867-8, 
ch. 35 (T. & S. Stat., sec. 1993d) giving cotton brokers, etc., a special 
lien for five days upon cotton sold by them, is not within the constitu¬ 
tional prohibition of special or partial legislation.” 59, 633. Parks v. 
Parks. 1874. 

Banks—Distribution of Effects—Statute Limiting Time Partial and 
Void—Delegation of Power.— TURNEY, J. : “The Act of Decmber 12, 
1866, entitled, ‘An Act to expedite the distribution of the effects of 
banks which have made or may make assignments among their credit¬ 
ors/ is not a statute of limitations. . . . To be a valid law a 

statute of limitations must be fixed and arbitrary, applying equally to 
all the people of the State or to all of a class, defining the outside or 
remotest period of time to which it is directed, and not merely fixing a 
minimum under which it shall not operate. This statute makes the 
trustee both legislator and judge. To him it is given to prescribe the 
time within which the creditor shall file or deposit his claim, and to him 
it is given to determine whether he has brought himself within the time, 
creating branches to the legislative and judicial departments unknown 
to the Constitution. The act is an attempt on the part of the legislature 
to delegate its law-making power to individuals, and is prohibited by 
the Constitution, of which the legislature is the creature. It is as com¬ 
petent for the legislature to enact that each court in the State shall 
declare what time shall bar the collection of a debt after a given period, 
as it was to have enacted this statute. To do either is to create as 
many new legislatures, with limited powers, as there are trustees or 
courts. The statute is unconstitutional and void.” 60, 436. Fogg et 
al. v. Union Bank et al. 1872. 

Act Applying to Counties Only That Have a Certain Population, Void 
—Act 1877, Ch. 120.— Cooke, J., held: “Chapter 120 of the Acts of 
1877, providing that it shall apply ‘only to counties that had a popula- 


M. & V.. 2761. 



CLASS LEGISLATION. 


521 


tioQ by the census of 1870 of not less than forty thousand/ is unconsti¬ 
tutional—there being but two counties in Tennessee having that popula¬ 
tion—because it is a suspension of the general law for the benefit ot 
the two counties, and because it is impossible for other counties, which % 
have subsequently acquired a population of forty thousand, to bring 
themselves within the terms of the statute.” 82 , <620. Woodard 
Adm'r v. Brien et al. 1884. 

Act of 1885, Ch. 158, Void for Same Reasons Given in Foregoing Case 
—Statute—Part Void—Effect on Residue.— COOKE, J., held: “The Act of 
1885, ch. 158, which by its terms ‘shall not apply to counties having a 
population of not less than seventy-five thousand inhabitants/ etc., is 
partial or class legislation, and therefore void. Where only a part of a 
statute is void, and the residue so dependent and connected with the 
void part that it cau not be presumed that the legislature would have 
passed the one without the other, then both are void.” 84 , 71. Burk- 
holtz v. The State. 1885. 

Barber Sunday Law Class Legislation. —The Act of 1887, ch. 106, was 
considered in this case. Turney, J.: “This act, if operative, is for the 
benefit of all individuals (barbers excepted) who may see fit to keep and 
use bath rooms for profit. We know that all best hotels have bath 
rooms for the use of guests; that they receive pay for baths and permit 
them on Sunday; that in many cases a barber has his shop and bath 
rooms under the roof and in parts of the building in which the hotel 
and its bath rooms are kept, occupied and used. So if the act is to be 
enforced as the law it will apply alone to barbers with its penalties and 
punishments, while the inn keeper may with impunity use and keep 
open his bath rooms on the same floor and equally public. Under the 
act every other individual than one engaged in barbering may establish 
and keep open on Sunday any number of bath rooms, and may even buy 
or rent that now used by the proscribed barber, in or out of a hotel 
building, continue its use as a bath room and keep it open as such on 
Sunday. The act falls strictly within the ordinance in its tacit but dis¬ 
tinct and unequivocal reservation of rights, privileges, immunities and 
exceptions to all classes of individuals except those ‘engaged in the 
business of barbering/ For this, as well as upon the first ground, it is 
void.” 86, 276. 1 Bagio v. The State. 1887. 

Druggists’ Relief Act of 1887—Retrospective Laws—Assumption of 
Judicial Power by Legislature—Power to Compromise Law Suits—Obli¬ 
gation of Contracts—Questions Reserved—Privileges and Property Tax. 

—The question here was the validity of the Act of 1887, ch. 89, p. 179, 
releasing all druggists from liquor dealers' privilege taxes incurred by 
them under the Acts of 1881 to 1886, inclusive, where the liquors were 


1 See same case, art. 2, sec. 17, p. 248. 



522 


TENNESSEE CONSTITUTIONAL LAW. 


sold in good faith for medicinal uses only, also where suits were pending 
at date of passage to dismiss same at defendants’ costs. It was insisted 
that this act was in violation of the Constitution, art. 11, sec. 85 art. 1, 
sec. 20; art. 2, sec. 28; art. 2, secs. 1 and 2. Prior to the passage of 
this act the State and Davidson county had recovered a decree in the 
Supreme court against complainants for these taxes. 

Lurton, J.: “The class thus described by the act form a natural and 
not an arbitrary class, and legislation with regard to this class is not for 
the benefit of individuals within the meaning of the Constitution. But 
it is said that the act makes no provision for the return of the tax to 
such as have paid it, and that it is therefore partial. This might be dis¬ 
missed with the suggestion that it does not appear that there are any 
such. But would this be an objection to such an act? This liability, 
after it was incurred, became a debt due the State, and the relation of 
debtor and creditor existed. Can the State release or compromise with 
its debtors? Resolutions and acts releasing bail bond for forfeitures 
and compromising or releasing sureties upon the bonds of revenue and 
other officers are not uncommon, and their validity has been unques¬ 
tioned. That the power to settle, compromise, and even release a lia¬ 
bility due to the State ought to exist somewhere is most obvious. . . . 
He who would show the unconstitutionality of an act of the legislature 
must be able to put his finger upon the provision of the Constitution 
violated. That the power of compromising or releasing a liability may 
be abused is no answer to its existence. All human power is liable to 
abuse. The power of public opinion, the responsibility of legislators to 
their constituents, are likely to prevent any very great abuse of such 
power, and afford reasonable guaranties for its proper exercise. There 
is no clause of the Constitution which prohibits the legislature from 
releasing any of its debtors, and, indeed, the learned counsel represent¬ 
ing the State do not challenge its existence with regard to individual 
debtors. But they insist that its exercise must be restrained by the 
limitations contained in the Constitution requiring all legislation to be 
general. This argument, if sound, might require the State, if it released 
one debtor, to release all in a similar situation. This is not reasonable, 
for it is conceded that the State may compromise with or release a sin¬ 
gle debtor without extending the same terms to other debtors on the 
same account. Now, if the State may, by resolution or bill, compromise 
with or release one debtor, or the sureties upon a particular bond, why 
may it not include, in the same release, any number of debtors? If 
such an act or resolution would be valid if the debtors relieved were 
named, why will it not be equally valid if those to whom relief is 
extended are by the act so described as to constitute a class? We can 
see none. That the release is conditional upon the existence of certain 
facts, or upon acceptance of certain terms, such as are named in the 


CLASS LEGISLATION. 


523 


second section of this act where suit has been brought, is not at all 
objectionable. The second section is operative only upon the collecting 
officers of the State, and requires them to dismiss suits pending upon 
acceptance of the terms of the act by the defendants. It contained no 
mandate to the courts. . . . 

“The refunding of a property tax to the people of one county would 
probably operate as unequal taxation. That case is in no aspect con¬ 
trolling as to the question now under consideration, for if the validity of 
an act releasing certain tax payers who have incurred liability for a 
privilege tax depends upon its applicability to all members of the com¬ 
munity in a like situation—a question which we reserve—then the 
requirement is met in this case, for druggists selling liquors for medici¬ 
nal purposes only form a natural and not an arbitrary class, wholly dis¬ 
tinct from liquor dealers in any true or legal sense of the term. The 
act is therefore not one for the benefit of individuals within the mean¬ 
ing of the Constitution. That the act applies alone to past delinquencies, 
and has no prospective effect, does not make it retrospective legislation 
in the sense of the Constitution. All release acts or resolutions settling, 
compromising, or releasing liabilities due to the State are in one sense 
retrospective; but there can be no doubt that a State may pass such 
retroactive laws as only waive her own right without violating the Con¬ 
stitution. Black’s Constitutional Prohibitions, sec. 221; Davis v. Dawes, 
4 Watts & S., 401; Lewis v. Turner, 40 Georgia, 416; Myers v. Byrne, 19 
Ark., 308. 

“ That such a release act may have been unwise furnishes no reason 
for declaring it void. The policy of such legislation may be debatable, 
but the legislature must settle all such questions under their responsi¬ 
bility to their constituents. The question as to this court is one of 
legislative power. If this existed the act must stand. The operation 
of the act is obviously to release all who have made themselves liable 
by sales for medicinal uses. It does not, therefore, matter whether the 
liability has been reduced to judgment before the passage of the act, or 
is still the subject of a pending suit. If the party liable chooses to 
rely upon the release, he may do so by injunction bill, as in this case, or 
by pleading it and offering to comply with the terms of the second sec¬ 
tion when suit was pending at the passage of the act. 

“Does the act release the liability of complainaut to Davidson county 
for this privilege tax? We think it does. The liability was incurred to 
both State and county under the same law and upon the same state of 
facts. The act releases the class of citizens described in the act from 
all liability incurred during certain years. The terms are comprehensive 
enough to embrace liability to the county as well as the State. The 
State may release a liability to the county for such a tax as well as it 
may release liability to itself. The county is but an emanation from 


524 


TENNESSEE CONSTITUTIONAL LAW. 


the State. It does not exercise any power or franchise under any con¬ 
tract between itself and the State. The latter creates, and it may 
destroy. The State delegates the power of taxation, but it may with¬ 
draw such power and itself assess taxes for municipal purposes.” 87 , 
218. DeMoville & Co. v. Davidson County. 1889. 

Railroads—Unfenced—Liability for Injuries Done Live Stock — 
Act 1891, Chapter 101, Constitutional—Appraisement of Damages — 
Attorney’s Fees — Jury — Police Power — Construction of Doubtful 
Statute.— Lurton, J., held: “The x Act of 1891, ch. 101, fixing upon 
unfenced railroads absolute liability for injuries done to live stock by 
their moving trains, is constitutional and valid, both as a whole and in 
its details, when its scope and pupose are ascertained by a correct con¬ 
struction. This act should not be treated as a mere scheme for the 
speedy collection of damages for injuries to live stock, although that is 
incidentally provided for. Its chief purpose is to prevent accidents on 
railroads, and, viewed from this higher ground, it is a proper and legiti¬ 
mate exercise of the police power of the State. And said act is not 
unconstitutional as vicious ‘class legislation/ although its provisions 
confer benefits upon a limited class—to wit, owners of live stock—and 
impose burdens upon a limited class—to wit, unfenced railroads. These 
classes are natural and not arbitrary. And that provision of said act is 
valid which authorizes the appraisement of the damages done to live 
stock by three freeholders appointed by a justice of the peace at the 
instance of the owner, and makes their report prima facie evidence 
of the value of the stock injured or killed. This is a mere regu¬ 
lation as to evidence, which it was competent for the legislature to 
make. And that provision of said act is valid which makes railroads 
wrongfully refusing to pay such appraisement liable for plaintiff's 
attorney fee, in addition to other damages, in any suit brought to recover 
the damages withheld. This is not obnoxious class legislation. It is an 
exercise of the police power of the State. But no fee is recoverable 
unless the appraisement is sustained. But the amount of such attorney 
fee must, like other damages, be fixed by the jury or the court sitting 
as a jury. The provision of said act requiring the fee to * be fixed by 
the court trying the case’ is construed as providing for jury trial of 
this question, thereby saving the act from unconstitutionality. Doctrine 
reaffirmed and illustrated that where a statute is of doubtful meaning, 
it should receive that construction which is in harmony with the Consti¬ 
tution.” 91,489. 2 Railroads v. Crider et al. 1892. 


1 Shan. Sup. to M. & V., p. 116. See 115 U. 3., 523. 


8 See same case, art. 2, sec. 17, p. 294. 



CLASS LEGISLATION. 


525 


Private Corporations—Creation and Control Of. 

Legislature Has Power to Reserve Right to Repeal or Amend 
Charter—Vested Rights — Contract. — CARUTHERS, J.: “In England, 
corporations are created by royal charter and by the act of parliament. 
They may also exist by prescription there, which presupposes a creation 
in a lawful mode—that is, in that country, by charter from the king, or 
act of parliament. In this country they can only be created by the 
authority of the legislature. 2 Kent, 276. . . . The legislature may 

reserve the power to modify, amend, or repeal a charter. 2 Kent, 306; 
Ang. & Ames, ch. 22, sec. 737. This reservation, then, becomes a part 
of the contract, and the charter is accepted with that as one of its 
terms or provisions. This exercise, therefore, of this power to amend 
or repeal is no infraction of the contract in such a case, but is in exact 
conformity to it. The right of the legislature to insert this term in 
charters is not debatable at this day. Vested rights must be strongly 
maintained by the courts against the legislatures and all other authori¬ 
ties. The safety of every man’s rights, of all kinds, depends upon a 
firm adherence to this principle, and the least departure from it would 
be just cause of alarm. But what are the rights of men or corporations, 
and the rules of construing their contracts, must also be regulated by 
the rules of law. A contract of any kind with various provisions must 
be taken as a whole, and all its terms are to have equal vigor according 
to the meaning and intent of the parties. But in order to reserve to 
the* legislature this important power to repeal, impair, or alter the rights 
and privileges conferred by a charter, which is considered a compact 
between the government and the individual corporators, such reserva¬ 
tion must be made a part and parcel of the contract—that is, it must 
be contained in the act constituting the charter—or it is of no force; 
such reservation is efficacious, contained in the same act with the 
charter, and not otherwise. 2 Kent, 306, 307. 

“In the unreported case of Hurt v. Lebanon & Nashville Turnpike 
Company, decided by this court several terms since — perhaps in 1850 
or 1851 —this was settled. An amendment of the charter in that case 
had been passed, and at a subsequent session repealed. The company 
resisted the force of the repealing act upon the ground that it was 
unconstitutional, on the principle established in the Dartmouth College 
case. The court so held, although at the same session of the amended 
charter a general clause was inserted in another and distinct act, reserv¬ 
ing to the legislature the power to amend or repeal all charters granted 
at that session. But, not being a part of the amended charter, it was 
held not to apply to it. If this were not so, no one could safely deal 
upon the faith of charters, without exploring and fully understanding 
the whole legislation of the session, at least. But upon the principle 


526 


TENNESSEE CONSTITUTIONAL LAW. 


settled there is no danger, as the whole compact must be contained in 
the same act, plainly open to the inspection of all persons concerned.” 
35, 620. 1 Ferguson v. Miners and Manufacturers’ Bank. 1856. 

Charters of Private Corporations May be Amended.— LURTON, J., 
held: “Charters issued under the General Incorporation Act of 1875 may 
be amended by general laws adding to the powers therein originally 
granted. Such amendments are authorized by the Constitution. It is 
not material whether the power to make them was reserved in the 
original 2 act.” 92,168. Miller v. Insurance Co. 1893. 

Chancery Court Can Not Create Corporations in the Absence of Legis¬ 
lative Authority—General and Special Laws—Reasons for Provisions in 
This Section of the Constitution.— This case grew out of the refusal of 
Chancellor Cooper to grant the prayer of the petition of Chadweli and 
other citizens for a charter of the “ Beersheba Springs Company,” under the 
Act of January 30, 1871, T. & S., 1507 i. Nicholson, J.: “Does the Con¬ 
stitution of 1870, art. 11, sec. 8, either expressly or by necessary impli¬ 
cation, authorize the legislature to vest in the courts the power to 
create as well as to organize corporations? It is a matter of legislative 
and judicial history that sec. 8 of art. 11 of the Constitution of 1834 
was intended to operate as a check upon that species of private legis¬ 
lation which conferred special privileges and benefits on individuals 
which were not enjoyed by all citizens of the State. It is equally a 
matter of history that the object of the Constitution was, in a great 
measure, defeated and frustrated by the liberal exercise by the legisla¬ 
ture of the power to grant charters of incorporation conferred by the 
proviso to that section. When the convention of 1870 assembled, one of 
the evils which was pointed out by public sentiment as calling for cor¬ 
rection was the unrestricted exercise by the legislature of the power to 
create corporations. The remedy for this evil was furnished in the 
clause of sec. 8, art. 11, referred to, which was manifestly intended to 
apply to corporations that might thereafter be created, the rule of equity 
and uniformity of rights and privileges, which constitute the true mean¬ 
ing and spirit of the preceding portion of that section. Does the lan¬ 
guage of the clause, when fairly interpreted, carry out this rule and make 
the several clauses of the section harmonize in spirit and in purpose? 

“The clause commences: ‘No corporation shall be created, or its 
powers increased or diminished, by special laws/ This is an express 
prohibition against the granting of charters of incorporation by the 
enactment of special laws, and clearly takes from the legislature the 
power to enact a special law creating a single corporation. But it was 
not thereby intended that no more corporations should be thereafter 


1 See same case, art. 2, sec. 2, p. 252; art. 2, sec. 18, p. 297; art. 2, sec. 21, p. 302. 

2 See Acts 1889, ch. 224, p. 445; Shan. Sup. to M. & V., sec. 1806, p. 174. 



CLASS LEGISLATION. 


527 


created, but they were not to be created by special law. How then were 
they to be created? The clause proceeds: ‘But the general assembly 
shall provide, by general laws, for organization of all corporations here¬ 
after created/ etc. This language contemplates two distinct processes in 
order that a corporation may commence operations. First, it must be 
created, that is, the authority to exist as a corporation must be com¬ 
municated; and, second, after this authority is communicated the cor¬ 
poration must be organized, that is, must be recognized by competent 
authority as having complied with the terms of its creation. 

“ It is clear that the general assembly is to provide the general laws 
under which the organization is to take place; but it is not required 
that the general assembly shall organize—that may be devolved upon 
the courts or any other designated branch of the government. Before 
organization there must be creation. Until there is a capacity to exist 
as a corporation, there can be no organization as a corporation. This 
capacity can only be created or communicated by the general assembly, 
unless, by special authority of the Constitution, the general assembly 
may devolve it on some other agency. No such special authority is given 
by the Constitution, and no powers, except by general laws, to provide for 
organizing these corporations thereafter created, that is, those corpora¬ 
tions which the general assembly may arrange to bring into being by 
the enactment of general laws prescribing the terms, forms, privileges, 
liabilities, etc., to attach to them. Such corporation so created shall be 
organized under general laws for that purpose. 

“What the convention intended by the language, ‘the general 
assembly shall provide by general laws for the organization of all corpo¬ 
rations hereafter created/ is clearly illustrated by the Act ot 1849, 
ch. 17, entitled ‘An Act for the incorporation of the citizens of any town, 
city, or village in the State of Tennessee, who may claim it/ . . . 

“The constitutionality of the Act of 1849, ch. 17, was tested in the 
case of Mayor and Aldermen of Morristown v. Shelton, 1 in which case 
this court held that the act was clearly constitutional. The same policy 
which induced the legislature, in 1849, to provide for the incorporation 
and organization of all villages, towns and cities that might desire incor¬ 
poration, induced the convention, in 1870, to extend the policy to all 
corporations, and to take from the legislature all the power to create 
corporations, except under general laws for their organization and 
creation. To suppose that the convention intended to confer upon the 
legislature the power to authorize the courts to create as well as to 
organize corporations, would be to attribute to them the folly ot authoi- 
iziug the existence, in every county of the State, of a tribunal empow¬ 
ered to create just as many and such corporations as each tribunal might 

i The opinion in this case is omitted from this volume because the act then under considera¬ 
tion is now obsolete. See note, p. 516. 



528 


TENNESSEE CONSTITUTIONAL LAW. 


determine to be proper, thus increasing an hundred fold the evil intended 
to be corrected. Nor do we see, in the language employed by the con¬ 
vention, either any uncertainty or ambiguity of meaning, especially 
when interpreted in the light of the judicial and legislative history of 
the State. 

“The language is imperative, requiring the legislature to pass general 
laws, under which all corporations should be organized. The Act of 
January 30, 1871, entitled ‘An Act to authorize the Chancery courts in 
this State to grant letters of incorporation,’ was intended to carry out 
the requirements of the Constitution. Provisions are made by this act, 
under which corporations, for various purposes therein specified, may 
be organized by application to the Chancery courts. As to these corpo¬ 
rations, the objects of the constitutional requirements are sufficiently 
accomplished and provided for. The objection to the act is confined to 
those provisions in which the legislature has assumed that power could 
be conferred on the Chancery courts to organize other corporations than 
those originated and specially provided for. The constitutional power 
of the legislature to devolve upon the Chancery courts jurisdiction to 
create corporations, under the Act of July 30, 1871, was considered by 
the Supreme court at the September term, 1872, at Knoxville, in the 
case of C. W. Hall et al. v. J. A. Mabry. 1 It was a petition by Hall and 
others to have amendments made to a macadamized turnpike charter, 
granted in 1866. The petition was demurred to, upon the ground that 
the general assembly has no power to delegate authority to the Chancery 
courts to grant charters of incorporation, or to amend charters of incor¬ 
porated companies, as prayed for. The court held that the Constitution 
explicitly prohibits the legislature from creating a corporation by any 
special law, and as clearly directs that it shall provide, by general laws, 
for the organization of all corporations to be thereafter created. And 
it was further held that provision has been made, by the general law of 
January 30, 1871, for orgauizatiou of corporations by the Chancery 
courts. ‘This law/ says the court, ‘is a general one, extending to every 
case in which an application may or can be made for corporate privi¬ 
leges. 7 By this language we understand the court to hold that the law 
referred to confers upon the Chancery court no powers, in any case, to 
create a corporation, but that in every case in which provision is made 
by general laws for the creation of corporations, this act authorizes the 
Chancery court to organize them by granting charters in pursuance of 
the general law. Hence, the court say, in conclusion, ‘ We are, there¬ 
fore, of opinion that the Chancery court has power, under the Act of 
January 30, 1871, to organize corporations for the construction of mac¬ 
adamized, graded turnpikes, and plank roads/ these roads being specifi¬ 
cally provided for in sec. 2 of the Act of January 30, 1871. But we find 


Unreported. 



CLASS LEGISLATION. 


529 


do general law, either in the Code or in subsequent acts, which provides 
for the creation of corporations for carrying on hotels, with the specific 
privileges to be exercised laid down. No such provision for the creation 
of such corporations have been made by general law. It follows, that 
none such can be organized by the Chancery courts until some general 
law providing for such corporations shall be enacted.” 1 62, 98. -Chad- 
well et al. ex parte. 1873. 

Privileges , Immunities and Exemptions—Of Railroad Corporations. 

Object and History of This Provision—Legislative Power—Power to 
Grant Charters With Exemption From Taxation—Internal Improvements. 
— McFarland, J. : “It has been settled since the Dartmouth College 
case that the charter of a private corporation, wheu accepted, becomes 
a contract, which can not afterwards be impaired by legislative action 
when the power to do so is not reserved. Stipulations for exemption 
from taxation, or the payment of a bonus in lieu of taxation, are impor¬ 
tant elements of the contract, and are protected by sec. 10 of art. 1 of 
the Constitution of the United States and a similar provision in the Con¬ 
stitution of the State. That the legislature of a State has the power to 
bind the State by such contracts, where that power is not denied by the 
Constitution, is also a result of these authorities. , . . Does the 

power to grant charters of incorporation, with exemptions from taxa¬ 
tion or other like stipulations binding upon the State, so that the char¬ 
ter after acceptance becomes a contract and irrepealable, fall properly 
under the head of legislative power? That such power properly belongs 
to the legislative department of a State, when there is no special limita¬ 
tion of the power, is too well settled to be questioned. The decisions 
of the Supreme court of the United States are numerous and uniform, 
beginning with the Dartmouth College case and coming down to the 
present time. Pacific Railroad v. McGuire, 20 Wall.; Wilmington Railroad 
v. Reid, Sheriff, 13 Wall.; Humphrey v. Pegues, 16 Wall., 1 Black, 436. It 
being, therefore, properly legislative power, it exists inherently, and we 
must look to the Constitution to see if any limit or restriction is placed 
upon the power of the legislature in this regard. And, to understand 
properly the language of the Constitution of 1834 on this subject, we 
must bear in mind the terms of the previous Constitution, the powers 
that had been exercised thereunder, the changes made and the evils to 
be remedied, at the same time considering the different parts of the 
Constitution bearing upon the question. 

“The Constitution of 1796 was especially defective in regard to 
securing equality of taxation, or the taxation of property according to 

1 Since this opinion was rendered, the lawsprovidingfor the organization of corporations have 
been entirely changed. See M. <fe V., 1691 to 2004. 

3 gee Tenn. Ch’cy Rep., vol. 1, p. 95, this case; M. Burns ex parte, p. 88; also 79, 5. 


34 



530 


TENNESSEE CONSTITUTIONAL LAW. 


its value; and this was the evil intended to be remedied by the change 
made and embodied in sec. 28 of art. 2, in regard to the taxation of 
property according to its value and securing the equality of taxation. 
But is there anything in the first clause of this section intended to limit 
the power of the legislature to grant exemptions from taxation in char¬ 
ters of incorporation, or (which is the same) to stipulate for a bonus or 
fixed sum in lieu of taxation? The language is: ‘All lands liable to tax¬ 
ation held by deed or entry, town lots, bank stock, etc., and such other 
property as the legislature may, from time to time, deem expedient, 
shall be taxable Was this intended to mean that thereafter the legis¬ 
lature should not have the power to stipulate for total or partial exemp¬ 
tions from taxation in charters of incorporation? The convention of 
1834 comprised among its delegates some of the ablest lawyers the 
State has ever produced. That they were familiar with the principles of 
the Dartmouth College case, decided some fifteen years previously and 
followed in other cases, can not be doubted. It is apparent, also, that 
they were familiar with the fact that the legislature, under the previous 
Constitution, had exercised the power of granting charters with total or 
partial exemption, or contracting for a special bonus in lieu of taxation 
—notably, in the instance of the charter of the Union Bank, granted 
only two years before—Union Bank v. The State—and that the power 
had never been questioned. With these facts prominent before the con¬ 
vention, if it was their purpose to restrict this power of the legislature, 
we should expect to find such restriction expressed in unequivocal lan¬ 
guage. But the only direct provision in regard to the power of the leg¬ 
islature in respect to charters of incorporation is the proviso to sec. 7 
of art. 11, to the effect that the restriction upon the power of the leg¬ 
islature to grant special privileges, immunities and exemptions was not 
to be construed to affect the power of the legislature to grant such char¬ 
ters of incorporation as they might deem expedient for the public good, 
thereby leaving this power as it previously existed. See 1 Hope v. Dead- 
erick. If it had been the purpose of the convention to restrict the 
power of the legislature in this particular, this would certainly have 
been the appropriate place to insert the restriction. But, so far from 
doing so, we find only the proviso above referred to, which was intended 
only to exclude the idea that the first clause of the section against the 
granting of special privileges, immunities or exemptions, was intended 
to limit the power of the legislature in regard to granting charters of 
incorporation. 

“ From this the conclusion seems necessarily to follow that the legis¬ 
lature was still left the power to pass laws creating bodies corporate, 
with all the rights, privileges, immunities and exemptions which it was 
usual to vest in such fictitious persons under the general principle of 


1 Page 332. 



CLASS LEGISLATION. 


531 


law previously recognized; and, as we have seen, the power in question 
was previously recognized by the general law and the authorities of this 
State. We do not say that rights, privileges or immunities might be 
granted inconsistent with other positive restrictions of the Constitution, 
and this brings us again to the language of sec. 28 of art. 2, to wit: 
'All lands liable to taxation held by deed, grant or entry, town lots, 
bank stock, etc., and such other property as the legislature may, from 
time to time, deem expedient, shall be taxable.* It has never been con¬ 
tended that this made it imperative upon the legislature to tax all 
property. That body might tax or omit to tax; that is, for the time 
exempt. If a tax was imposed it was required to be upon the value of 
the property, and according to the rules of equality. This is made more 
apparent by the change made by the Constitution of 1870, which declares 
that all property, real, personal, and mixed, shall be taxed , subject to 
the right of the legislature to exempt in certain cases, which are speci¬ 
fically defined. It is argued that the above clause makes all the prop¬ 
erty mentioned, and such other as the legislature might deem expedient, 
as continually subject to the power of taxation. That is, that it shall be 
and remain taxable, and that this forbids any action by the legislature 
which would place property beyond the power of taxation. On the 
other hand, this section may well be construed as having no reference 
to the property of corporations to be created, and as leaving the power 
of the legislature in this regard as it stood before. This is the more 
natural construction, when we take this section in connection with the 
clause before referred to, and find that no express restriction is placed 
upon the power conceded to have previously existed in the legislature 
in respect to corporations in that clause which refers directly to the 
power to grant such charters. 

“Again, the Constitution of 1834 declared that a well-regulated 
system of internal improvements should be encouraged, and for such 
purposes the legislature has often appropriated the revenues of the 
State, and further loaned the credit of the State to the extent of 
immense sums. The power to do this has never been questioned. If 
the legislature can thus appropriate and use the public money, it is dif¬ 
ficult to see why it may not stipulate for the release of part of the public 
taxes for the same purpose, as it would be in effect the same. Upon 
this declaration of the Constitution the legislature have, from time to 
time, freely acted. The State was without railroads. It was regarded 
as a public necessity that roads should be constructed. They were to 
be constructed by corporations—in a sense, private corporations—and 
yet as it was believed that the resources of the State would be thereby 
developed and the public prosperity promoted, they were regarded as 
public improvements , and to be encouraged. Pacific Railroad v. McGuire, 2 
Wall., 36. It was foreseen that as a private speculation such enterprises 


532 


TENNESSEE CONSTITUTIONAL LAW. 


would not pay, especially in those portions of the State where the cost 
of constructing the roads would be unusually heavy. . . . This was 

to some extent foreseen, and to meet this difficulty and induce capitalists 
to risk their money in the enterprise, this proposition to exempt the 
property to be thus created was made in consideration of the benefits 
expected to result to the public from the public improvement. 

“The property now sought to be taxed was not then in existence. 
It has been created, in part, at least, by the money invested upon the 
faith of this stipulation—much of it, for aught we know, may have been 
brought from other States. The people of the State have certainly, to 
some extent, realized from the improvements the benefits anticipated, 
whether to the full extent or not is immaterial. It may or it may not 
have been a judicious contract upon the part of the State. The neces¬ 
sities for revenue now demand contribution from every available source. 
The property of some of these roads are valuable and exemptions are now 
odious. But if the law and the contract was valid at the time, we must 
in good faith abide by its terms according to its fair and just import. 
Upon this question it may be added that where there has been no 
judicial construction of a clause of the Constitution, the courts have 
given great weight to the construction given to the clause by other 
departments of the government. Stewart v. Land, 1 Cranch, 299; 
Martin v. Hunter, 1 Wheaton, 351; 6 Wheaton, 418; 12 Wheaton, 290. 
Several successive legislatures that met while this Constitution was in 
force, a period of thirty-six years, granted charters of incorporation, with 
total or partial exemptions for a time, and during the entire period the 
power was never questioned. On the contrary, all departments of the 
government acquiesced and obeyed the laws thus passed, and under these 
nearly all of our public improvements have been constructed. This 
uniform action upon the part of the Senate authorities is entitled to 
great weight. Upon this question we conclude that the legislature had 
the power to stipulate for the exemption in question.” ... It was 
also held: “ That the State having provided for the adjudication of these 
questions, and the purchase having been made on the faith thereof, it can 
not question the validity of the adjudication.” 68, 445. K. & 0. R. R. 
v. Hides. 1877. 

Immunity Can Not Pass by Sale—When.—WAITE, C. J., held: “Im¬ 
munity from taxation is uot such a franchise of a railroad corporation 
as will pass by a sale under a mortgage or statutory lien on the prop¬ 
erty and franchises of the company. 102 U. S., 273-278.” l E. T., V. & 
G. R. R. Co. v. Hamblen County. 1880. 

“Privilege” Does Not Include Exemption, but is Used in Restrictive 
Sense. — Turney, J., held: “The word ‘ exemption’ is not compre- 


1 Not in Tennessee Reports. 



CLASS LEGISLATION. 


533 


headed within the words ‘rights and privileges/ as applied to a cor¬ 
poration claiming a right of exemption from taxation by virtue of a 
section of its charter conferring upon it the rights and privileges of a 
like corporation, which latter corporation was by express terms of the 
charter exempt from taxation.” He said: “The first question, whether 
privilege is exemption from taxation, has been before us twice. The 
first time in the case of the ^iss. & Tenn. Railroad v. The State, at 
Jackson, and then again in the case of the E. T., Va. & Ga. Railroad v. 
Hamblen County, in both of which we held, after full argumeut, that the 
term privilege did not include exemption, nor was it so intended by the 
legislature in its use in any or either of the several acts referred to. 
However comprehensive a meaning may have been giveu to the term 
* privilege' by the courts of other States, or by lexicographers, we are con¬ 
strained to use it in the restricted sense and meaning given to it by our 
own laws and the Constitution of the State. That it was not intended 
or understood to be sufficiently broad by the framers of the Constitu¬ 
tion of 1834 to embrace exemptions, is made clear and indisputable by 
reference to sec. 7 of art. 11 of that instrument by which it is ordained: 
^The legislature shall have no pcAver to pass any law granting to any 
individual or individuals rights, privileges, immunities or exemptions, 
other than such as may/ etc. A legislature acting under this Constitu¬ 
tion for its powers, and as defining its duties, must be conclusively pre¬ 
sumed to have used a word or term of the Constitution in the sense and 
with the meaning given it by that Constitution. 

“The 2 acts’in review in this case were passed while the Constitution 
of 1834 was in force and the Supreme law of the State, the chart defin¬ 
ing the powers and jurisdictions of the several departments of the gov¬ 
ernment, aud under which they were organized and moved and acted, 
and conformity to which determined the legality of their acts. It can 
not be pretended or presumed that the able men comprising the con¬ 
vention which framed the Constitution used language or terms without 
a purpose or meaning, or double terms of the same meauing without 
more. We are satisfied the term ‘privileges/ as employed in that Con¬ 
stitution, in the connection in which it appears, was used iu its restric¬ 
tive sense. That the interpretation we have given is the correct one is 
made the more manifest by the use of identically the same language in 
sec. 8 of art. 11 of the Constitution of 1870, which shows the conven¬ 
tion of that year understood the terms ‘privileges' and ‘exemptions' to 
perform distinct offices, and to have been employed with different 
meanings, the latter more comprehensive.” 3 68, 549. Wilson v. Gaines. 
1877. 


Not reported. 


’Act December 11, 1845, sec. 38. 


3 Affirmed bv U. 8. Supreme Court Feb. 28. 1881, Waite, C. J. delivering the opinion which is 
irted in 103 U. S., 417-42*2. See also Third Tenn. Ch’cy Rep., 597. 


reported 



534 


TENNESSEE CONSTITUTIONAL LAW. 


Taxation—Sale of Railroad—Immunities Pass to Purchasers—When. 
—Freeman, J., held: “ Where a railroad exempt for a certain period 
from taxation is sold under proceedings instituted by the State to 
enforce its lien or statutory mortgage, such proceedings being authorized 
by statute and providing for the sale of the road, franchises, etc., and 
providing that all the rights, privileges and immunities appertaining to 
the franchise shall be transferred to and vested in said purchaser and 
decree of sale so directing, the State is estopped to tax said road during 
the time the original company was exempt from taxation. In such 
case the immunity from taxation of the company passed by sale to the 
purchaser.” 80, 583. The State v. N., C. & St. L. B. B. Co. 1883. 

Act Exempting Corporation From Taxation on Condition that it 
Accept an Amendment to its Charter and Pay Specified Tax, Void— 
Charter Exemptions Discussed.— The acts under consideration were 
those of 1875, ch. 78, and March 20, 1877, amending the former act. 
Cooper, Chancellor, held: “The State Constitution of 1870 having 
expressly provided that ‘ all property shall be taxed,’ an act of the leg¬ 
islature exempting from all other taxation, for a limited period, any rail¬ 
road company which would accept certain amendments of its charter, 
and pay annually to the treasury of the State one and one-half per cent 
of its gross receipts, is beyond the competency of that body, unconsti¬ 
tutional and void; and this, although one of the accepted amendments 
of the charter provided for the relinquishment, after the period of 
exemption, of all exemptions from taxation contained in the original 
charter of the company.” 1 After referring to the opinion of the court 
in the case of Ellis v. L. & N. R. R. Co., he said: 

“The court in that case treated the Act of 1875 as a purely revenue 
law, and expressly held that the legislature could not, at any rate by 
such an act, agree, for a consideration, to exempt railroad property from 
the equal and uniform taxation prescribed by the State Constitution. A 
further study of that decision has removed all doubt as to its scope and 
meaning. It plainly holds that a tax of a certain per cent on the gross 
income of railroad companies is not a tax upon the property of the 
companies at all, but an exemption from such taxation, and beyond the 
competency of the legislature, under the new Constitution of 1870. It 
goes further, and directly meets the argument which has been most 
earnestly and ably pressed upon me by the learned counsel for the com¬ 
plainants, namely, that the existing exemption of the railroad property 
from taxation took it out of the mandate of the Constitution and left 
the legislature at liberty to make any contract it saw proper in relation 
thereto. The court say: ‘The surrender of the supposed immunity from 
taxation, though it might be a good consideration for the grant of special 
exemptions or privileges in the absence of any constitutional prohibi¬ 
tion to make such grant, can not give validity to an act of the legis- 


CLASS LEGISLATION. 


535 


lature which it is prohibited by the Constitution to pass/ It is true that 
there was no exemption then existing in relation to the property of the 
Louisville & Nashville Railroad Company, the subject of taxation in that 
suit, and, therefore, the premise on which the argument rested did not 
exist. But the argument, if it is to have any bearing on the case before 
us, must be held to go to this extent: that if an exemption exists at the 
date of the contract, no matter for how short a time it is to continue, it 
will sustain a contract for exemption for any length of time the legis¬ 
lature may determine; for the exemption which existed in 1875 as to 
the property of the company ran out, so far as the argument is con¬ 
cerned, on March 28th, 1877, and the exemption secured by the sup¬ 
posed contract extended for about eight years longer. The decision is, 
that the surrender of an immunity from taxation, though a good consid¬ 
eration for anything the legislature can constitutionally grant, can not 
confer upon the legislature a power it is expressly forbidden to exercise. 

“The constitutional mandate that ‘all property shall be taxed’ pre¬ 
vents the legislature from granting any exemption whatsoever, no mat¬ 
ter what may be the consideration. It can make no difference, there¬ 
fore, whether the immunity surrendered be on the same property or on 
other property, or what may be the consideration, it is beyond the legis¬ 
lative competency to grant an exemption of property from taxation. It 
is not the nature or extent of the consideration which is to be looked 
to, but the legislative power. It is precisely as if the Constitution had 
forbidden the legislature to pledge the State credit for any purpose, and 
the legislature were to undertake to buy up existing indebtedness by 
pledgiug the State credit for a longer period. However supreme its 
authority may be in other directions, or however wise aud judicious 
may be the exercise of its authority in the particular direction, the 
question is one of constitutional power. The court say the legislature 
is expressly forbidden to exempt. Existing exemptions can not, of 
course, be interfered with, but new exemptions are beyond legislative 
competency. It has unlimited power to deal with existing exemptions, 
provided it does not extend them, or grant other exemptions. The 
consideration it pays may take any other shape but that. Trask v. 
Maguire, 18 Wall., 392, 407. In this view, the rule of uniformity of 
taxation, prescribed by the same section of the Constitution, has nothing 
t«, do with the question of power. The court conceded that the legisla¬ 
ture may direct the mode and choose the agencies for ascertaining the 
value of property, but must then tax, equally and uniformly, according 
to the value. And it holds, expressly, that a percentage on gross income 
is not a tax on property at all.” 1 Third Tenn. Ch’cy Report, 604. 
M. & C. B. B. Co. v. Gaines et al. 1877. 


•Affirmed on appeal, by tbe Supreme court of the State in an un reported opinion, and by the 
United States Su^rerne court, December 2, 1878, Waite, C. J:. delivering the opinion, which is 
reported in 97 U. S., 697-712. 



536 


TENNESSEE CONSTITUTIONAL LAW. 


Exemption as Juror in Charter of Private Corporation, Invalid.— 
Neely was fined twenty-five dollars for failing to attend as a juror after 
being summoned. His defense was that he was a director in the M. & C. 
R. R. Co., the charter of which exempted directors from jury service. 
The lower court held the provision of the charter inoperative and void, 
because repugnant to the Constitution. Deaderick, J.: “We are of 
opinion that the holding of his honor, the judge of the Criminal court, 
is correct. It is an attempt to pass a law for the benefit of individuals 
inconsistent with the general laws of the land, and purports to grant to 
individuals, who may be directors in said company, privileges, immuni¬ 
ties and exemptions which are not extended to other members of the 
community who may be able to bring themselves within the provisions 
of such law, contrary to the provisions of art. 11, sec. 8, of the Consti¬ 
tution. Counsel for Neely have cited the case of Hawkins v. Small, 7 
Bax., 193, in support of the validity of the exemption contained in the 
charter of said company. The case cited does sustain the position 
assumed, but it does not appear that the constitutionality of the pro¬ 
vision in the charter, in that case, exempting a section hand from work¬ 
ing on the public roads, was considered. Of course the constitutionality 
of the provision must have been taken for granted, otherwise the result 
announced could not have been attained. But the opinion does not dis¬ 
cuss the validity of the exemption, but reaches the conclusion in favor 
of the exemption upon other grounds stated in the opinion. We are of 
opinion, however, that the case was erroneously decided, and overrule 
it, as it is liable to the same constitutional objections which lie against 
the case at bar.” 72, 316. Neely v. The State. 1880. 

Same—Of Banking Corporations. 

Exemption from Taxation — Transfer of Franchise — Legislative 
Recognition. — Folkes, J.: “Well considered cases have gone so far 
as to hold that when the existence of a corporation has been recog¬ 
nized by acts of the legislature all inquiry into the original creation 
of the corporation is precluded. Society for Propagation of Gospel v. 
Pawlett, 4 Pet., 480; Matter of N. Y. Elevated R. R. Co., 70 N. Y., 338. 
Again: It becomes by such recognition ipso facto a legal corporation, 
and any defect or irregularity in the proceedings required by law to 
be taken for its organization will be deemed to have been waived. 
Black River & Utica R. R. Co. v. Barnard, 31 Bar., 258; Atlantic & 
Pacific R. R. Co. v. St. Louis, 66 Mo., 228; Turnpike Co. v. Davidson 
County, 3 Tenn. Ch 7 cy, 396. In which last case it is said by Judge 
Cooper, that 1 after repeated recognitions of the existence of a turnpike 
corporation up to and inclusive of the last legislature, a collateral 
impeachment of its existence based on pre-existing facts, can not be 
entertained. 7 See also Waterman on Corp., sec. 42. Of course we do 


CLASS LEGISLATION. 


537 


not mean to be understood as placing any stress upon the legislative 
recognition by the Act of March 12th, 1873, as aiding in the conclusion 
that there is a valid corporate existence of the Bank of Commerce 
today; for it is manifest that if the savings bank had no valid existence 
prior to 1870, it could acquire none by legislative act since the Constitu¬ 
tion of 1870, which provides that ‘no corporation shall be created, or its 
powers increased or diminished by special laws.’ But the change of 
name by special act of an existing corporation does not fall within the 
inhibition of the constitutional provision referred to, as such change of 
name does not involve, in any sense, a creation of a corporation, nor the 
increase or diminution of corporate powers. Wallace v. Loomis, 97 U. S.; 
Jones v. Haversham, 107 U. S., 174. The Bank of Commerce, therefore, 
with a valid organization and succession, possesses the franchises— 
including the exemption from all other taxes, except one-half of one 
per cent upon its capital stock—to the same extent, no more and no 
less, that were possessed by the Chattanooga Saviugs Institution under 
the original charter.” 86, 629. The State for use etc. v. Butler. 1888. 

Taxation of Shares of Stock—No Exemption Under Present Consti¬ 
tution—Exemptions Not Transmissible—Last Clause Construed in Con¬ 
nection With other Provisions.— After quoting the last clause in the 
Constitution of 1834, art. 11, sec. 7, and its substitute in the Constitution 
of 1870, art. 11, sec. 8, Caldwell, J., said: “There is some plausibility 
Iu the suggestion that this substituted language was intended to 
authorize the legislature to do by general law what it could do before 
by special law; but this concession is made ouly in connection with the 
qualifying statement that in both cases the legislative discretion is 
subordinate to other positive provisions of the organic law, and that in 
neither could it be made effective if exercised in conflict therewith. 
Though the legislature was empowered by the proviso of the seventh 
section of art. 11 of the Constitution of 1834 to grant such charters of 
incorporation, by special laws, as it deemed expedient for the public 
good, it could not, under that authority, grant corporate ‘rights 
expressly forbiddeu by any other clause’ ot the same Constitution. 
McKinney v. Hotel Co.; Memphis v. Memphis Water Co. So it is, also, 
with reference to the Constitution of 1870. The whole instrument must 
he taken into consideration, and no part so construed as to impair or 
destroy any other part. Legislative powers enumerated in one clause 
must be defined and exercised with reference to limitations and require¬ 
ments made in other clauses. 

“With this fundamental rule of construction in view, and placing 
sec. 8 of art 11 and sec. 28 of art. 2 of the Constitution of 1870 in juxta¬ 
position, the conclusion becomes irresistible that the framers of that 
instrument intended that the legislature should not , thenceforth, have 
power to grant immunity from taxation, by general law or otherwise, to 


538 


TENNESSEE CONSTITUTIONAL LAW. 


any Dew corporatioa, or to preserve an existing immunity to any old 
corporation in its change from one business to another fundamentally 
different. That power was taken away absolutely. . . . Unlike the- 

revenue clause of the Constitution of 1834, the requirement here is 
positive and imperative that all property, except that mentioned for 
exemption, shall be taxed. This provision comprehends the whole 
domain of taxation; and, in explicit terms, prescribes the maximum of 
exemptions beyond which the legislature may not go. It declares what 
property may be and what shall be excepted from taxation, and directs 
that all the rest shall be taxed. By that mandatory direction the legis¬ 
lature is prohibited from making any other exemptions from taxation 
upon any ground or consideration whatever; ‘and if it attempt to do so,, 
the effort is unavailing and void for want of legislative power.’ . . ► 

“Such an immunity as that claimed by the defendants in this cas& 
not being embraced in that exception, and being within the prohibition,, 
the legislature has no power to grant it, either by original or amenda¬ 
tory enactment, however general in form and operation. It has already 
been seen, upon abundant citation of authority, that capital stock and 
shares of stock ar q property. They fall clearly within the constitutional 
requirement that all property shall be taxed. Hence there is no legis¬ 
lative power to exempt them. As especially in point, we refer to Bank 
of Shreveport v. Board of Assessors, 141 La. Ann., 188. Under the eighth 
section of art. 11 of the present Constitution the Legislature may, by 
general laws, provide for the organization of new corporations, and for 
the increase or diminution of the powers of old ones; but that is the 
limit. It can not go further, and grant immunity for taxation, for that 
is forbidden by sec. 28, art. 2, of the same instrument. This construc¬ 
tion gives full force to both provisions in letter and in spirit, and makes 
them perfectly harmonious, while a contrary construction would produce 
irreconcilable conflict, and, in reality, override and set at naught the lat¬ 
ter provision by the former one. Such a result is forbidden by every 
sound rule of interpretation, and will not be sanctioned for a moment. 

“Again, it is competent for the legislature by general laws to- 
increase the powers of existing corporations, but that does not mean 
that it may grant immunity from taxation. An increase of powers does 
not include a grant of immunity from taxation. The word ‘powers’ - 
has not so wide a range, it is not so comprehensive in its scope as the 
other words of the same section, ‘rights and privileges;’ yet, these latter 
words do not embrace immunity from taxation. This, to our mind, is 
demonstration that the legislature, since the adoption of the Constitu¬ 
tion of 1870, has no power to grant or enlarge an immunity from taxa¬ 
tion to any private corporation, even by general law, whether creative 
or amendatory. Then, may it preserve such an immunity to corpora¬ 
tions created before that date, when, by subsequent legislative sanction,. 


CLASS LEGISLATION. 


539 


they divert their capital into channels not authorized by their original 
charters? Manifestly not. The lack of power to preserve the immunity 
for the new enterprise follows from the lack of power to grant it in the 
first instance. To preserve the immunity of an existing corporation in 
so radical a change as from au insurance to a banking business, the 
same measure of legislative power is requisite as in granting originally 
a similar immunity to independent incorporators desiring to enter upon 
a banking business upon subscriptions of money contributed for that 
purpose. The only ground upon which immunity from taxation can 
now be preserved to any corporation in this State, is that the charter 
granting it, when it was lawful so to do, is a contract whose obligation 
can no more be violated by constitutional amendment than by subse¬ 
quent legislation. . . . 

“It is competent for the legislature to increase the powers of existing 
corporations by general laws, but it can not preserve to them immunity 
from taxation, if, in availing themselves of their new powers, they 
divert their capital into new enterprises. It can no more preserve the 
immunity through such a change than it can extend the life of an 
expiring charter, aud thereby preserve the immunity through another 
term. Either would be tantamount to granting an exemption originally. 
Hence both are forbidden. The most that can be properly said in favor 
of corporations having immunity from taxation, when the Constitution 
of 1870 was adopted, is, that so long as they pursue the business then 
authorized by their charters they are entitled to the full benefit of that 
immunity, but if they embark their capital in any business not legit¬ 
imately within the scope of their charters at that date, whether the 
diversion be with or without legislative sanction, it thereby becomes, 
while so employed, subject to taxation as other property of the same 
species.” 91, 586. Memphis v. Memphis City Bank. 1892. 

Charter Exemption from Taxation Construed—Failure to Fix Capital 
Stock — Exemption Attaches to Increased Capital Stock. — GEORGE GlLL- 

ham, Sp. J., held: “The capital stock, and not the shares of stock, is 
exempt from taxation, uuder a charter providing that ‘the said institu¬ 
tion (corporation) shall have a lien on the stock for debts due it by the 
stockholders, before and in preference to the other creditors, except the 
State for taxes, and shall pay to the State an annual tax on one-half of 
one per cent on each share of capital stock, which shall be in lieu of 
all other taxes.’ The prohibition of the Constitution of 1870 against 
exemptions from taxation does not prevent the exemption of a valid 
increase of the capital stock of a corporation made after 1870, under 
express authority contained in a charter granted prior to 1870, which 
exempted the capital stock from taxation.” 95, 224. 1 The State v. 
Bank of Commerce. 1895. 


1 See name case, art. 1, sec. 20, p. 191: art. 2, sec. 28, p. 317. 



540 


TENNESSEE CONSTITUTIONAL LAW. 


Same—Of Insurance Companies. 

Acceptance of Charter — Exemptions Withdrawn by Constitution of 
1870 — Legislative Recognition — Effect of—Exemption Lost by Change 
of Business.— George Gillham, Sp. J., held: “Acceptance of charter is 
essential, and, to be effectual, it must be done within a reasonable time. 
A delay of twenty-four years is unreasonable. The Constitution of 1870 
forbids the granting of charter exemptions from taxation, and had the 
effect to withdraw all offers of charter exemptions from taxation which 
had not been previously accepted. Legislative recognition of a corpo¬ 
ration by changing its name and situs , will not give vitality to a charter 
exemption from taxation which had not been accepted within a reason¬ 
able time and had been withdrawn, before acceptance, by the Constitu¬ 
tion of 1870. Failure for a period of twenty-four years, and until after 
the adoption of a Constitution prohibiting exemption from taxation, to 
accept a charter offering exemption from taxation to the corporation, 
will prevent a subsequent organization under the charter so as to secure 
the exemption, and the fact that, after organization, the corporation is 
recognized by the legislature by a statute changing its name and situs 
is immaterial. The charter of an insurance company can not be 
changed, so as to permit it to do banking instead of insurance business 
and at the same time preserve an exemption from taxation, after the 
adoption of the Constitution of 1870 prohibiting such exemptions.” 95, 
203. l The State v. Planters' etc. Insurance Co. 1895. 

Same — Of Water Companies. 

Exclusive Privilege to Water Company—“Public Good.”—NICHOL¬ 
SON, J.: “ Is the exclusive privilege granted by its charter to the Memphis 
Water Company forbidden? ... It would be difficult to show that 
the privileges secured to the water company are not embraced within 
the prohibitions of this section, but it is even more clear that the power 
to grant an act of incorporation is forbidden by the language of the body 
of this section. The proviso to the section, however, gives the power 
to grant charters of incorporation, and for the purpose of enabling the 
legislature thereby to grant exclusive privileges, which, but for the 
proviso, would be prohibited by the body of the section. In this grant 
of power to create corporations, there is no limitation on its powers, at 
least, as curtailed by the general terms of the section. The legislature 
is required to consult ‘the public good’ in granting charters. 1 Sneed, 
115; 4 Col., 414; Cooley’s Con. Lim., 281.” 52, 530. City of 2 Memphis 
v. Memphis Water Co. 1871. 

1 See also 95 , 212. 

2 See same case, art. 1, sec. 20, p. 185; art. 1, sec. 22, p. 229; art. 2, sec. 17, p. 273. 



CLASS LEGISLATION. 


541 


Same—Of Pool-Selling Associations. 

Pool Selling by Chartered Association—Act of 1883, Chapter 138, 
Unconstitutional.— Cooper, J.: “The act makes it a misdemeanor, pun¬ 
ishable by fine, ‘for any person to sell pools, or to make any betting 
book or combination upon any race run, trotted or paced in this State, 
or in any other State of the United States, unless the said pool-selling, 
book-making or combination be conducted or made under and by the 
authority of a lawfully chartered or incorporated blood-horse or turf 
association, or trotting association, or stock or agricultural fair associa¬ 
tion of this State, and then only in the county in which said association 
or fair may be located. It is further enacted that any association oper¬ 
ating under the provisions of this act shall pay an annual tax for the 
privilege to the State of one hundred dollars, aud that the counties may 
collect a tax on the same not to exceed the State tax. . . . After a 

corporation is created for any purpose, and with specified powers, it 
becomes a person within the meaning of our penal 1 laws, or other general 
laws, and subject, like individuals to those laws. Its powers may be in¬ 
creased or diminished by general law, but it can be no more exempted than 
an individual citizen from the purview of a penal law. Lea v. The State. 
The exemption of classes of persons, not individuals, from the penalties 
of prohibiting acts is a different question. Maney v. The State; The State 
v. Kauscher; and see Davis v. The State. The question is, consequently, 
narrowed down to this: Was the act intended to increase the corporate 
powers of the particular class of corporations T And clearly it was not, 
for the powers and privileges are not extended to all of these corporations, 
but are restricted to such of them as choose to pay an annual tax 
therefor. What the statute in fact does is to create a new privilege, the 
right to sell pools, and make betting books upon races run either in or 
out of the State, and to limit the exercise of this privilege to a certain 
class of corporations. This can not be done. A privilege created for 
individual profit and taxation must be open to every member of the 
community who may be able to bring himself within the provisions of 
the general law which creates the privilege.” 81, 228. Daly v. The 
State. 1884. 

Private and Municipal Corporations. 

Corporations, Municipal and Private—Powers, Increasing and Dimin¬ 
ishing— History and Meaning of This Section—Applicable to Private 
Corporations Only.— Cooper, J. : “The constitutional prohibition applies 
exclusively to private, not to public or municipal corporations. The 
first clause of the section quoted from the Constitution of 1870 was also 
contained in the Constitution of 1834, and was followed by these words: 


»T. & S., 4870; M. & V., 5688. 



542 


TENNESSEE CONSTITUTIONAL LAW. 


‘Provided, always, the legislature shall have power to grant such 
charters of incorporation as they may deem expedient for the public 
good.’ This proviso was left out of the Constitution of 1870, and its 
place supplied by the second clause of the section quoted: ‘No corpo¬ 
ration shall be created, or its powers increased or diminished by special 
laws/ etc. ‘ The power to grant charters of incorporation/ says Nich¬ 
olson, C. J., ‘is forbidden by the body of the Constitution of 1834, art. 
11, sec. 7, but conferred by the proviso. 7 City of Memphis v. Memphis 
Waterworks, 5 Heis., 495, 530. The language was used by the chief 
justice in a case involving the rights of a private corporation, and was 
correct as to such corporations, in the sense of granting charters to 
individuals by special laws; for the charters of private corporations 
consist of ‘rights, privileges, immunities or exemptions/ which the first 
clause of the section of both Constitutions provides shall not be granted 
to auy individual or individuals by law, not extended by the same law 
to any member of the community who might be able to bring himself 
within its provisions. In view of these provisions, the power to grant 
special charters of incorporation to particular individuals for private 
purposes was prohibited. But the remark was not correct in reference 
to the power of the legislature to grant charters of municipal cor¬ 
porations; for nothing in the first clause of the section of the Consti¬ 
tution under consideration would have affected the inherent legislative 
power to create municipal corporations intended to subserve the public 
interests and not for the benefit of individuals. ... ‘A municipal 
corporation/ says Mr. Justice Hunt, ‘in the exercise of all its duties, 
including those most strictly local or internal, is but a department of 
the State. The legislature may give it all the powers such a being is 
capable of receiving, making it a miniature State within its locality. 
Again, it may strip it of every power, leaving it a corporation in name 
only; and it may create and recreate these changes as often as it 
chooses, or it may itself exercise directly within the locality any or all 
of the powers usually committed to a municipality. We do not regard 
its acts as sometimes those of an agency of the State, and at others 
those of a municipality; but that, its character and nature remaining at 
all times the same, it is great or small according as the legislature shall 
extend or contract the sphere of its action. 7 Barnes v. District of 
Columbia, 91 U. S., 540, 544. And this court has repeatedly said that 
the legislature has the power to create municipal corporations inde¬ 
pendently of any constitutional grant. Hope v. Deaderick; Nichol v. 
Mayor etc.; Trigally v. Mayor. 

“The Constitution of 1870 does not contain the express grant of 
power to the legislature to create corporations conferred by the proviso 
of the Constitution of 1834, quoted above. The proviso is supplied by 
the clause: (Quoting last clause.) . . . This language plainly 


CLASS LEGISLATION. 


543 


implies that the inherent power of the legislature to create corporations, 
#nd, of course, to alter or repeal the charters of incorporation, remains 
in full force except in so far as it may be affected by the particular pro¬ 
visions of the section. The limitations upon the powers are that the 
^rights, privileges, immunities or exemptions’ of a corporation shall not 
be conferred upon particular individuals, but shall be so granted by law 
as to be open to any member of the community who may be able to 
bring himself within the law, and that the law itself shall be subject to 
alteration or repeal so as not to interfere with vested rights. But these 
limitations manifestly relate exclusively to private corporations; for 
franchises conferred merely for the public benefit can not be said to be 
granted to individuals, and were always subject to alteration or repeal, 
and never created vested rights. The provisions were utterly unneces¬ 
sary and inapplicable in the case of municipal corporations, and were 
intended for private corporations. It is true the word ‘corporation’ is 
geueric, and would ordinarily include both public and private corpora¬ 
tions. It is also true, as said in the Luehrman case, that the weight of 
authority seems to be in favor of taking the word in its broad seuse in 
the construction of Constitutions as well as statutes where there is 
nothing in the context to control the meaning. But the first clause of 
the section of the Constitution under consideration so clearly relates 
only to the conferring of rights, etc., upon individuals, and the limita¬ 
tions of the second clause are so manifestly directed to the same object, 
the scope and purpose of the entire section having no possible bearing 
upon municipal corporations, that we think the word should be restricted 
to that class of corporations which seems to have been alone contem¬ 
plated by the provisions. The great diversity of municipal corpora¬ 
tions required to meet the wants of local communities seems to demand 
n, larger liberty of legislation than private corporations. The public 
-exigency may demand special legislation for one community not proper 
for any other. And the general assembly has, undoubtedly, in numerous 
instances since the adoption of the Constitution of 1870, acted upon 
this construction of the legislative power. The Constitution itself, by 
art. 6, sec. 1, in providing how the judicial power of the State shall be 
vested, expressly authorizes the legislature to vest such jurisdiction in 
corporation courts as may be deemed necessary.’ And the jurisdiction 
of such courts must, it need scarcely be said, vary with the population, 
-exteut of territory, and locality of the municipality. And the same may 
be said of the taxing powers which the legislature is authorized by the 
Gonstitutiou, art. 2, sec. 29, to confer upon incorporated towns. 

“There is a result of the limitation of legislation in the creatiou of 
corporations, and the increase or diminution of their powers by general 
laws only, which would follow such legislation in regard to public as 
well as private corporations. And that is that the sessions of the legis- 


544 


TENNESSEE CONSTITUTIONAL LAW. 


lature would be less occupied in the consideration of merely local bills. 
But this is a mere incident, and not the object of the constitutional pro¬ 
vision under consideration. It is probable, however, that this incidental 
benefit may have influenced the action of the constitutional convention,, 
which is referred to in the Luehrman case, in voting down a motion to 
limit the particular section to private corporations. Whatever may 
have been the motive of this action, we are constrained to hold that the 
section itself, as adopted by the people, only applies to private corpora¬ 
tions. The provisions of the section were intended to control legisla¬ 
tion in reference to corporations in existence at the adoption of the 
Constitution of 1870, as well as to corporations created subsequently. 
The language is: ‘No corporation shall be created, or its powers increased 
or diminished by special laws.’ The plain meaning, in accord with the 
grammatical construction, is that no corporation shall be created, and 
no corporation shall have its powers increased or diminished by special 
laws. It was never intended that there should be a favored class of 
corporations whose powers might be increased by special laws merely 
because they happened to be in existence when the Constitution went 
into effect. The object of the provision was to place all corporations- 
on a level as to rights, privileges, immunities, exemptions or powers- 
afterwards conferred. The power of the legislature over corporations 
in other respects, as we have seen, is not affected.” Judges Freeman 
and Turney dissented. 80 , 257. l The State v. Wilson. 1883. 

To Private Corporations Only. — The court, by COOPER, J., held again 
the provision that no corporation shall be created, or its powers 
increased or diminished by special law applied to private corporations 
only. 83 , 638. 2 Ballentine v. Mayor etc. of Pulaski et al. 1885. 

Municipal Corporations — Privileges , Immunities , Exemptions. 

Legislature Can Not Delegate to Municipal Corporations Power to 
Grant Exclusive Franchise. — SHACKLEFORD, J.: “It is insisted for the 
complainants the ordinance of the board of mayor and aldermen, of the 
20th of November, 1859, authorizing the construction of street railways, 
and granting the exclusive right of operating them, is void. The power 
attempted to be exercised by the board of mayor and aldermen is not 
warranted by the provisions of their charter, nor under the well-settled 
laws of this State could it be delegated. The right attempted to bo 
granted by the ordinance of 20th of November, 1859, was an attempt to- 
grant an exclusive privilege or franchise in the streets of the city. The 
right of granting a franchise, or an exclusive privilege to individuals, is, 
by the Constitution of the State, vested in the legislature. It is a high 

1 See same case, art. 2, sec. 17, p. 284 ; also M. & V., 1643 ; Acts 1881, ch. 87, and Acts 1883 ch 110 

art. 2. sec. 17. p. 277; art. 2, sec. 28 , p. 



CLASS LEGISLATION. 


545 


and responsible trust—one that can not be delegated, and to be exer¬ 
cised by the legislature only when it is necessary for the public good. 
A municipal corporation is established by the legislative authority, and 
is vested, to a prescribed extent, with certain local powers to regulate 
its peculiar concerns according to its will. It has the right to exercise 
all the powers delegated by the charter. Any act done by those acting 
under the charter inconsistent with the provisions of the charter, the 
Constitution or the laws of the land, is void. Having no authority under 
their charter to grant the exclusive privilege of operating street railways 
on the streets in the city of Memphis to any class of individuals, it fol¬ 
lows the ordinance of 20th of November, 1859, is void. 

“The right of a corporation to grant the exclusive right of operating 
street railways to individuals came before the Supreme court of New 
York, where the right had been granted by the city to persons to con¬ 
struct and operate railroads on the streets of New York. It was held, 
in several well-considered cases, the corporations themselves had no 
power to confer upon individuals, by contract, the right of constructing 
and operating street railroads on public streets for their own benefit or 
individual use. 27 New York Rep., 611; 14 New York Rep., 506. This is 
clear, upon principle. The legislature having no power to delegate the 
right to create an incorporation, or the rights of franchise in the streets 
of a city, the city authorities have no power to make such contracts, as 
it would be the grant of a franchise. 1 The power, under the Constitu¬ 
tion, is vested in the legislature to grant the right to use the streets and 
alleys of a city for lines of railways. Tennessee & Alabama Railroad v. 
E. W. Adams, 3 Head, 596; 27 Penn. Rep., 339; 7 Bur., 509. But this is 
a power that can not be delegated. It can alone be exercised under the 
provisions of the Constitution by the legislature. The mayor and aider- 
men had no authority, therefore, to contract with Kirk & Small and their 
associates to operate street railroads in the city of Memphis, or to con¬ 
fer upon them the exclusive right.” 44 , 414. P. P. E. R. Co. v. Mayor 
etc. of Memphis. 1867. 

Can Not be Relieved From Duty of Giving Bond, Security, Etc., for 
Costs.—F reeman, J.: “By an act of the legislature of 1875, municipal 
corporations with a population of thirty-five thousand or more, were 
authorized to institute suits either at law or in equity in any of the 
State courts, without giving bond for costs, and also to prosecute 
appeals, writs of error, attachments, injunctions, etc., without giving 
security for costs. In this case a motion was made to dismiss the 
appeal of Memphis under this act. Held, that while municipal corpora¬ 
tions in some sense are public bodies having powers conferred on them 
appertaining to sovereignty, such as power to levy and collect taxes, 

1 The State v. Armstrong, art. 2, sec. 2, p. 260. 

35 



546 


TENNESSEE CONSTITUTIONAL LAW. 


vet in another aspect, as when they become suitors, or are sued in 
courts, they stand as individuals. In this latter view municipal corpo¬ 
rations must be governed by the general law, and can have no ‘general 
law suspended for their benefit/ etc. . . . The Act of 1875 is repugnant 
to this section of the Constitution, and therefore void.” 68, 239. City 
of Memphis v. Fisher. 1877. 

Objects of This Provision — Legislature May Repeal Charter of 
Municipal Corporation at Any Time — Control of Local Affairs — Powers 
of Municipal Corporations—Abolishment—Increase and Diminution Of. — 
Cooper, J. : “If the question were a new one, I would be inclined to 
hold that the section of the Constitution just cited was intended only 
as a restriction upon the legislative powers over private corporations. 
The weight of judicial authority has been, however, to treat words in a 
Constitutiou relating to corporations generally, such as ‘corporate 
powers/ ‘body politic or corporate/ and ‘charters of incorporation/ as 
applying equally to public and private corporations. ... It seems, 
also, that the journals of the constitutional convention of 1870 contain 
•evidence that a motion to limit the provisions of the section above 
quoted, to private corporations, was voted down. Under these circum¬ 
stances, although the history of the corresponding section in the pre¬ 
vious Constitution of 1834, and the peculiar wording and context of the 
clause in question leave little doubt in my mind that only private cor¬ 
porations were intended, I will examine the objection made, upon the 
concession that public corporations are included. 

“The prohibition of the Constitution is against the creation or the 
increase or diminution of the powers of a corporation by special law, 
and the direction is to provide by general laws ‘for the organization of 
all corporations hereafter created/ The repeal of a general law, passed 
in accordance with this requirement, would necessarily affect all cor¬ 
porations organized under it. But the intention, so far as appears, was 
not to interfere with existing public corporations, however diverse might 
be the provisions of their respective charters. The powers of such cor¬ 
porations could not, it may be, be increased or diminished except by a 
general law, while there is nothing to prevent the repeal of an existing 
charter by special law, with a view to the reorganization of the cor¬ 
porate community under a general law. In no other way could the old 
charters be changed, except, indeed, by an indiscriminate repeal, a 
sweeping innovation certainly not expressed, and which the courts are 
not called upon to imply. The legislature might have enacted, after the 
adoption of the new Constitution, a general law, as has been done in 
regard to private corporations, for the organization of public corpora¬ 
tions, and either not interfere with pre-existing charters, or only repeal 
such of them as chose to organize under the new act. And I am not 
prepared to hold that there is anything in the language of the Constitu- 


CLASS LEGISLATION. 


547 


tion which prohibits the legislature from repealing, at any time, the cor¬ 
porate privileges of a particular community, whether organized previous 
or subsequent to the adoption of the Constitution. This is a power so 
essential to sovereignty and the preservation by the State of its control 
over its instrumentalities of local rule, that it can not well be considered 
as cut off' except by a positive provision to that effect. The restriction 
is against the powers of a corporation being ‘ diminished * by special 
laws, not against their entire abolishment. And we may conceive of 
cases where, by the vicissitudes of trade, as in the case of old Saruum, in 
England, and some of the mining towns of California, the special repeal 
of a particular charter might be demanded by public policy, when a 
general repeal would be a remedy worse than the disease. All the 
authorities are agreed that municipal corporations are within the abso¬ 
lute control of the legislature, and may be abolished at any time in its 
discretion. Dill. Mun. Corp., secs. 30, 37, and cases cited. The reason 
is obvious. Being created as instrumentalities or arms of the govern¬ 
ment, they can not be continued in that capacity whenever the public 
exigency, of which the legislature alone is judge, demands that they 
should cease to act. . . . There can not be a doubt, therefore, that 

the Act of 1879, ch. 10, to repeal the charters of certain municipal cor¬ 
porations is constitutional, and that the charter of the city of Memphis 
is thereby repealed. . . . 

“The government of incorporated towns has been based upon the 
idea of local self-government by popular representation, its prototype 
being the form of the State government. Several of the State Constitu¬ 
tions, in order to secure the permanency of the form, have expressly 
provided that the tilling of the municipal offices, either by election or 
appointment, shall belong to the local authority. . . . Even in these 

States the provision of the Constitution is held to apply only to officers 
whose duties are plainly and exclusively local, and does not extend to 
officers whose duties concern the State at large or the general public, 
although exercised within the bounds of the municipality, such as offi¬ 
cers of police, of health, of schools, and for the administration of justice. 
A board of police, it has been repeatedly held, may be appointed by the 
State, without reference to the wishes of the corporation, with powers 
to estimate the expense of the police, and to compel the city authorities 
to raise, by taxation, the amount so estimated. . . . 

“These cases are instructive in showing the necessity of the govern¬ 
ment of the State intervening for the protection of the local communi¬ 
ties against the oppression and inefficiency of their own servauts, aud 
how impolitic it may sometimes be to hamper legislative action by con¬ 
stitutional restraints. In the absence of such restraints, and our Con¬ 
stitution contains none, the maxim of republican government that local 
affairs should be managed in the local district, is subject, all the 


548 


TENNESSEE CONSTITUTIONAL LAW. 


authorities agree, to such exceptions as the legislative power shall see fit 
to make. The legislature has the power to do whatever is not expressly, 
or by necessary implication, forbidden by the Constitution. . . . 

It is for that body to determine, as the direct representative of the 
people, what the public good requires. The courts can only interfere 
when the legislature has violated the Constitution, not otherwise. ‘The 
courts are not at liberty/ says Mr. Cooley, ‘to declare an act void because 
it is, in their opinion, opposed to a spirit supposed to pervade the Con¬ 
stitution, but not expressed in words.’ . . . That is a spirit which it 

is difficult satisfactorily to materialize, even by the most skillful judicial 
expert. Whenever the legislature, fresh from the people with an 
unlimited elective franchise, departs from democratic usage, the public 
exigency must be great which demands so unusual a remedy. The 
courts have no right to interfere unless there has been a violation of the 
organic law.” Judges Freeman and Turney dissented. 70, 431. 

1 Luehrman v. Taxing District of Shelby County. 1879. 

Municipal Privileges that are Not Prohibited—“Four-Mile Law” Con¬ 
stitutional.— Cooper, J.: “The first section of the 1 2 Act of 1877, ch. 23, 
makes it unlawful to sell or tipple any intoxicating beverage within four 
miles of an incorporated institution of learning in this State. The 
second section provides that the act shall not apply to the sale of such 
liquors within the limits of any incorporated town. . . . The ground 

of the demurrer is, that while the first section of the statute is a general 
law, the second section, by its exemption of persons selling within the 
limits of an incorporated town, deprives the act of its general character, 
and makes it a partial law within the prohibitions of the Constitution, 
art. 1, sec. 8, and art. 11, sec. 8. But ‘an act which extends to and 
embraces all persons who are or may come into the like situation and 
circumstances’ is a ‘law of the land’ within the section of the Bill of 
Rights cited. Mayor etc. of Alexandria v. Dearmon. And the Constitu¬ 
tion, art. 11, sec. 8, while declaring that the legislature shall have no 
power to suspend any general law for the benefits of particular indi¬ 
viduals, expressly authorizes the legislature to create corporations, or 
to increase or diminish their powers by general laws, thereby showing 
that municipal privileges originated in this way shall not be held to fall 
within the prohibitions of the section. The act under consideration is 
strictly analogous to one which has been on our statute books since 
1824, and is brought into the Code, sec. 4854. 3 That section makes it a 
misdemeanor to expose to sale or gift any spirituous or other liquors 
within one mile from the place where any assemblage of persons is col¬ 
lected together for religious worship, and not at his usual place of busi¬ 
ness. The exemption from the penalties of the act of persons who may 

1 See same case, art. 2, sec. 17, p. 280; art. 2, 2 M. & V., 5679. 

sec. 29, p. 355; art. 7, sec. 4, p. 473. a M. & V., 5665. 



CLASS LEGISLATION. 


549 


sell at their usual place of business has never been supposed to deprive 
the statute of its character as a general law. West v. The State, 9 Hum., 
66.” 69, 97. The Stale v. Rauscher. 1878. 

Act Exempting Operation of Four-Mile Law in Certain Municipal 
Corporations Void.— Freeman, J., held for the second time: “The Act 
of 1877, ch. 23, known as the four-mile law, forbidding sale of liquors 
within four miles of an incorporated institution of learning, is constitu¬ 
tional.” Also that “the Act of 1883, amending the Act of 1877 so ‘that 
this act shall not apply to the sale of such liquors within the limits of 
any incorporated town, except it be within the limits of corporations 
organized under the Act of 1882, ch. 127, known as taxing districts of 
the second class, to which it shall apply and within which such sales 
shall be unlawful/ is unconstitutional as a partial aud not a general 
law.” Judge Freeman, in discussing the latter act, said: “This is not a 
law governing all the municipal corporations of the State, but only such 
as are organized under the Act of 1882. The effect of the law is better 
seen, perhaps, by putting it in the affirmative and negative form as to 
the two classes of corporations, that is, that in all corporations under 
charters other than such charters as are provided for by the Act of 1882, 
it shall be lawful to sell spirituous liquors within four miles of an incor¬ 
porated institution of learning, but in such as are organized under that 
act, and since that date, having the form of organization known as a 
taxing district, it shall not be lawful. 

“It is seen that the prohibition is not applicable to all municipal cor¬ 
porations of the State, but is confined only to a few with exceptional 
charters. It would be as well to say it shall be lawful to sell liquors in 
all counties of the State except those organized since the Constitution of 

1870, or in anyone of the original civil districts of the county, but as to 
all newly laid off civil districts in the various counties of the State such 
sale shall be prohibited. This is beyond the competency of the legis¬ 
lature to do, is a partial and not a general law in any sense of these 
words, aud therefore not a law of the land under the Constitution.” 
80, 368. Hatcher et al. v. The State. 1883. 

Change of Limits Can Not be by Chancery Court. — COOPER, J., held: 
“The courts of chancery is this State are not authorized by the Act of 

1871, ch. 54, to change the territorial limits of a municipal corpora¬ 
tion.” 79,1. Willett v. Corporation of Belleville. 1883. 

Extending Territorial Limits—Special Laws Affecting are Valid—Co- 
Existent, General and Special Laws.— The act under consideration was 
that of 1890 (ex. sess.), ch. 33. Caldwell, J., held: “The territorial 
limits of an existing municipal corporation may be extended by a special 
law enacted for that sole purpose. Such act is not within the constitu¬ 
tional prohibition that'uo corporation shall be created, or its powers 


550 TENNESSEE CONSTITUTIONAL LAW. 

increased or diminished by special laws/ This clause of the Constitution 
applies not to municipal, but alone to private corporations. . . . 

Although the general laws, and also the charter of the particular muni¬ 
cipal corporation, have provided ample methods by which its bound¬ 
aries might be extended without resort to further legislative action, yet 
the legislature has the power to accomplish that end by special statute. 
Special laws of this character are not within the constitutional prohibi¬ 
tion that ‘the legislature shall have no power to suspend any general 
law for the benefit of any particular individual, nor to pass any law for 
the benefit of individuals inconsistent with the general laws of the 
land/” 89,487. 1 Williams v. Nashville. 1891. 

Stock Ordinance—Police Power. — SNODGRASS, J., held: “A municipal 
corporation has power to prohibit, under suitable penalties, the running 
at large of stock within a specified portion, less than the whole, of its 
territory. Such ordinance is within the police power of the corpora¬ 
tion. It is not invalid as vicious class legislation.” 92, 73. Chatta¬ 
nooga v. Norman. 1892. 

Taxing Land of the United States. — COOPER, J., held: “Land to 
which the United States acquired title under a direct tax sale is not 
exempt from State taxation while so held. The act of the legislature of 
March 31, 1885, which provides that all property held or owned by the 
United States under direct tax sales shall be exempt from taxation 
while so held or owned does not apply to taxes then in course of col¬ 
lection by suit, and is probably unconstitutional, except as a statute of 
limitation.” 83,33. Anderson v. Van Brocklin et al. 1885. 

Charitable Associations. 

Delegation of Power—Grand Lodge I. O. O. F. Has No Authority to 
Confer Power on Subordinate Lodges. —J. M. DICKINSON, Sp. J.: “By an 
act passed in 1846 (ch. 69) ‘the Grand Lodge of the Independent Order 
of Odd Fellows of the State of Tennessee 7 was incorporated with power 
‘to acquire, hold, possess, use, occupy, and enjoy real and personal 
estate to the amount of twenty thousand dollars, and to sell and convey, 
or otherwise dispose of the same under by-laws, rules, and regulations 
of said lodge, and to be competent to contract and be contracted with, 
to sue and be sued, plead and be impleaded, 7 etc. By ch. 60, Acts of 
1847, the former act was amended so ‘ that whenever said grand lodge 
shall establish or charter a subordinate lodge, the said subordinate 
lodge is hereby invested with the separate right to an amount of real 
and personal property not exceeding the sum of ten thousand dollars, 
to the same extent and under the guards and restrictions of the afore¬ 
said Act of 19th of January, 1846. The third section of the amend- 

1 See same case, art. 1, sec. 8, p. 63; art. 2, 6ec. 2, p. 255; art. 2, sec. 19, p. 306. 



CLASS LEGISLATION. 


551 


atory act provides, that 1 whenever the authority establishing said sub¬ 
ordinate lodge shall be withdrawn and the separate existence of said 
subordinate lodge be destroyed, the property of said lodge shall be 
placed in the hands of a trustee appointed by the grand lodge to pay 
the debts and liabilities of said subordinate lodge, and the residue of 
the real estate, if there be any, to be applied by the trustee as may be 
prescribed by the by-laws of said subordinate lodge; provided , the 
benefit of this act shall extend to lodges already established as well as 
to those to be created.’ It is insisted that the defendant lodge could 
not, by virtue of these acts, become a corporation, because the legis¬ 
lature can not delegate the power to create corporations, aud that this 
is the effect of the foregoing acts, if it be insisted that their purpose 
was to make subordinate lodges legal persons. . . . The acts char¬ 
tering the grand lodge of the State do not delegate to it the authority 
to confer any powers upon subordinate lodges. The legislative discre¬ 
tion in this respect is not parted with, but the power with which such 
lodges is to be clothed is distinctly defined in the act. There can be no 
distinction drawn between these acts in this respect and the one sus¬ 
tained iu Mayor v. Shelton, except that, under the former, the associa¬ 
tion of individuals, upon whom the power under the legislative enact¬ 
ment devolved, was organized by the grand lodge, while under the latter 
it was effected by the recording act of the County court. In neither 
case was any power, right, liability or immunity imparted, beyond what 
the legislative will had expressly passed upon and sanctioned in advance. 

“ We know of no principle which makes such investure of power in 
the grand lodge as is given by these acts void, or against public policy. 
When these acts were passed there was no general law by which the 
right to hold property might be acquired by an association, and it would 
have been highly inconvenient to the order and harassing to the legis- 
ture if a separate act had been necessary every time a subordinate 
lodge was created. The purposes were benevolent, and not for private 
gain. The life and harmony of the order depended upon judicious care 
in constituting subordinate lodges, and there was, in the nature of 
things, no probability of any abuse from the provision for clothing with 
the limited rights designated such branches as might be established. 

«The maintenance of the constitutionality of these laws, and the 
validity of the acts done under them, does not establish that the 
defendant lodge is a corporation. No certain form is necessary to a 
grant of corporate franchises, nor is the use of the word ‘incorporate’ 
indispensable. The real character and attributes must be looked at to 
determine whether there was a purpose to create a corporation. Mora- 
witz, section 18. There is nothing in these acts indicating any such 
intent. The only power conferred is the right to hold a certain amount 
of property.” 87, 680. Heiskell v. Chickasaw Lodge. 1889. 


552 


TENNESSEE CONSTITUTIONAL LAW. 


PRIVATE AND LOCAL AFFAIRS. 

Art. 11, Sec. 9. The legislature shall have the right to vest 
such powers in the courts of justice, with regard to private and 
local affairs, as may be deemed expedient. 1 [ Same as Const. 1834, art. 

11, sec. 8.] 

This Section Does Not Authorize an Act Giving- Circuit Courts Power 
to Grant Charters.— The act under consideration was ch. 254, passed 
February 26, 1856, conferring upon the Circuit courts power to grant 
charters. McKinney, J.: “It is argued that the validity of this act 
may be maintained under section 8 of the article of the Constitu¬ 
tion before referred to. That section is as follows: ‘The legislature 
shall have the right to vest such powers in the courts of justice, with 
regal’d to private and local affairs, as may be deemed expedient.’ This 
clause follows in immediate proximity that . . . which confines the 

power in question to the legislature. And it is obvious that the framers 
of the Constitution did not intend, by this clause, that the courts should 
be invested with the power of conferring corporate capacities and 
privileges, in the proper and general sense of these terms. This power, 
by the preceding clause, had been distinctly, and in explicit terms, 
vested in the legislature, and it would be in violation of every just prin¬ 
ciple of interpretation to assume that if it were intended that the courts 
might be vested concurrently, for some purposes, with the exercise of a 
power properly belonging, from its nature, to the legislature, and previ¬ 
ously granted to that department, that such intention would not have 
been declared in express terms. And there is such afi apparent incon¬ 
gruity and unfitness in the scheme of erecting some seventy-odd local 
tribunals, each clothed with the power to grant charters of incorpora¬ 
tion to all persons and for all purposes, as to forbid any amplitude of 
construction for the purpose of sustaining the act in question. But 
there is little room for construction in reference to this clause. We 
must suppose that the framers of the Constitution intended what their 
language naturally imports. In the one clause they speak of the power 
to grant ‘charters of incorporation/ and dispose of that power by intrust¬ 
ing it to the legislature. In the other clause they merely speak of 
‘powers’ in regard to ‘private and local affairs.’ This term ‘powers,’ it 
must be admitted, is not very definite, yet the distinction between the 
object and purposes contemplated by the two clauses is perhaps as 
obvious and as marked as is the difference between mere matters of the 
nature of county police, which do not need the machinery of a corpora¬ 
tion for their attainment, and those matters of more important and 
general concern, affecting the ‘ public good,’ which demand the facilities 


1 See L. & N. R. R. Co. v. Davidison County, art. 2, sec. 29, p. 335; N. & K. R. R. Co. v Wilson 
County, art. G, sec. 1, p. 414. Also 48 , 417, and 58 , 666. 



PRIVATE AND LOCAL AFFAIRS. 


553 


and exclusive beuefits of corporate capacities aud privileges iu order to 
their successful operation. 

u When the important difference is considered between the power to 
create a corporate body, with all its exclusive privileges and exemptions, 
to be held in perpetual succession, and the simple power to confer cer¬ 
tain previously defined rights and privileges upon individuals, as natural 
persons, to be held and eqjoyed, or transferred, as other civil rights, we 
can readily enough understand what was designed by the clause of the 
Constitution now under consideration. It was, no doubt, thought to be 
enough lor the convenience and well-being of the community that, by a 
general law, to be enacted by the legislature aud made applicable to all 
persons who might bring themselves within its provisions, the courts 
might be empowered, as the instruments of the legislature, to grant 
individuals, as citizens aud members of the community, such rights and 
privileges defined by law, in regard to matters of a purely private and 
local nature, as the legislature should deem it expedient to bestow. An 
authority of this nature had been imparted to the courts, iu various 
instances, by the legislature prior to the introduction of this clause into 
the amended Constitution of 1834; and these, and such like rights and 
privileges, were contemplated by its provisions. The case before us 
does not, however, require that we should attempt to define the precise 
extent of the ‘ powers 1 within the purview of the clause. It is sufficient 
for the present case to determine, as we do, that it does not authorize 
the legislature to invest the courts with power to grant ‘charters of 
incorporation.” 35,057. 1 The State v. Armstrong. 1856. 

Enterprises to Which This Section has Reference — Tax to Repair 
Roads — Power of County Court to Levy.—ANDREWS, J. : “It is Claimed, 
on behalf of the defendants, that if authority for their action be want¬ 
ing elsewhere, it is found in sec. J 1257 of the Code. . . . The consti¬ 

tutional provisions referred to in this section are, briefly, and in sub¬ 
stance, that the legislature may vest powers in the courts of justice 
with regard to private and local affairs; aud that a ‘well regulated 
system of internal improvements ought to be encouraged by the general 
assembly/ The authority of the County court under this section of the 
Code has no reference to works of public improvement to be undertaken* 
made and paid for by the county, but to those private enterprises 
undertaken with more or less reference to the public convenience, but 
for private gain, which require to be licensed, or may be regulated by 
the County court, and are in the nature of privileges. . . . This 

section clearly has reference only to such quasi public enterprises as are 
in the nature of privileges, to be granted to and exercised by individuals 
or corporations; and we can not suppose that, in incorporating its sub- 


1 See same case. art. 2, secs. 1 and 2, p. ‘260. 


* T. &S„ 1257; M. & V.. 1439. 



554 


TENNESSEE CONSTITUTIONAL LAW. 


stance and most of its phraseology in the Code, the legislature intended 
to change the whole scope of the act, and make it apply to a totally 
different class of subjects and confer wholly different powers upon the 
County court. We have no doubt that the powers granted to or recog¬ 
nized in the County courts are the same under these two sections; and 
that neither of them confers the power to undertake the general con¬ 
struction of public roads by the County court, at the expense of the- 
county.” 47 , 55. Hunter v. Justices of Campbell County. 1869. 

Art. 11, Sec. 10. A well regulated system of internal 
improvement is calculated to develop the resources of the State 
and promote the happiness and prosperity of her citizens; there¬ 
fore it ought to be encouraged by the general assembly. 1 [Same 
as Coii6t. 1834, art. 11, sec. 9.] 


HOMESTEAD. 


PAGE. 

Debtor—Power to Alien Land Previous to 

Homestead Law of 1870. 554 

This Provision No Exemption Against Pre¬ 
existing Debts. 505, 555 

Head of Family—Who was Intended by 
Framers of this Section— Widow, 

When.557 

Conveyance of Homestead Without Con¬ 
sent of Wife—Object of this Clause. 558 


PAGE.. 

When Homestead was Alienable. 55& 

Homestead Intended for Benefit of Family 

—Who is and Who is Not. 558' 

Debtor Who Acquires Right of Homestead 
by Marriage May Assert that Right 
Against Antecedent Debts, When... 559 
Educational Qualification of Voters — 

Dortch Law Valid. 394. 


Art. 11, Sec. 11. A homestead in the possession of each head 
of a family, and the improvements thereon to the value, in all, 
of one thousand dollars, shall be exempt from sale under legal 
process during the life of such head of a family, to inure to the 
benefit of the widow, and shall be exempt during the minority 
of their children occupying the same. Nor shall said property 
be alienated without the joint consent of husband and wife 
when that relation exists. This exemption shall not operate 
against public taxes, nor debts contracted for the purchase 
money of such homestead or improvements thereon. 2 


Debtor—Power to Alien Land Previous to Homestead Law of 1870.— 
McFarland, J., held: “After the passage of the homestead law of 1868 r 
and up to the 5th of May, 1870, a debtor, by his own deed, had tho 
power to alien his land, or mortgage it to secure his creditors, without 
the consent of his wife; except where the household had been claimed, 
set apart and registered. . . . But since the 5th of May, 1870, the 


1 See L. & N. R. R. Co. v. Davidson County, art. 2, sec 29, p. 335; Mitchell v. Turnpike Co., art. 
3, sec. 9, p. 386; N. & K. R. R. Co. v. Wilson County, art. 6, sec. 1, p. 414. Also 94 , 49. 

2 See 58,515; 60,43 ; 66,117; 69 , 229 ; 71,304 , 358 ; 76 , 392 ; 82, 370 ; 84, 373; 86,451, 659 1 
87, 335, 393 ; 89 , 90, 337 ; 92, 412 ; 94, 241. 

Tenn. Leg, Rep., Vol. 1, pp. 21, 22, 28, 281, 326. 

“ “ “ VOL. 2, p. 210. 

“ “ “ VOL. 3, p. 70. 

Second Tenn. Chc’y Rep., p. 606. 

Third Tenn. Chc’y Rep., p. 547. 










HOMESTEAD. 


555 


husband can not alien the homestead, except by the joint deed of him¬ 
self and wife, whether it has been set apart or not. This act does not 
impair the obligation of contracts entered into between the passage of 
the *Act of 1868 and May 5, 1870, when the new Constitution went into 
force.” 60, 222. Kennedy et al. v. Stacey et al. 1872. 

This Provision No Exemption Against Pre-existing Debts—Obligation 
of Contracts Not to be Impaired. — FREEMAN, J. : “Is the exemption of 
a homestead, by the provision of the Constitution and law of 1870, void 
so far as it may affect debts contracted before its adoption, or can the 
section of the Constitution be held to operate as against such debts? 
The question depends upon whether such exemption impairs the obli¬ 
gation of the contract. Before examining the authorities on this ques¬ 
tion, we may lay it down as conceded by all the courts whose decisions 
we have seen on this question, either expressly or by clear implication, 
that to deprive the creditor of the right to enforce collection of his debt 
by prohibiting him from reaching all of the property of his debtor from 
appropriation to the payment of his debt, by a law passed after the 
creation of the debt, would certainly be within the inhibition of the 
Constitution. This being conceded, necessarily carries with it the prop¬ 
osition, that in some way the right to enforce the collection of the debt 
by appropriation of the debtor’s property to its satisfaction, inheres in 
and is a part of the obligation of the contract of the debtor, and is a 
right of the creditor. If this be so, then this part of the obligation is 
inviolate by the clause of the Constitution of the United States, and can 
not be impaired or lessened in its effectiveness; nor can the principle 
be changed, by calling it part of the remedy, and then recurring to the 
other principle, well settled, that the legislature may alter or modify 
the remedy at its will, so that some equally efficient remedy be left the 
party. The clause of the Constitution of the United States, the con¬ 
struction and application of which is before us in this case, though 
expressed in the most concise terms, ‘no State shall pass any law 
impairing the obligation of contracts,’ has given rise to as much able 
and exhaustive discussion and diversity of views as perhaps any other 
part of that instrument. 

“While there is much diversity of decision in the State courts in the 
application of the principles settled by the Supreme court of the United 
States, as to the true construction of these words, we think there can 
be but little difficulty in arriving at the principle itself, upon an exam¬ 
ination of the decisions of that high tribunal. This principle is perhaps 
as well and fully stated in the case of McCracken v. Hayward, 2 How. 
(Curtis 7 Ed.), 221, 222, as in any other case. The case arose under a 
law of Illinois, which required, in substance, that when property should 


1 M. & V., 2986 et seq. 



556 


TENNESSEE CONSTITUTIONAL LAW. 


be levied on by execution, three householders should value the property 
at its cash value, and endorse the amount on the execution or on a 
paper attached to it; and when such property should be offered for 
sale it should not be struck off unless two-thirds of the amount of such 
valuation should be bid for it. The court says: * In placing the obliga¬ 
tion of the contracts under the protection of the Constitution, its 
framers looked to the essentials of the contract more than to the forms 
and modes of proceeding by which it was to be carried into execution, 
annulling all State legislation which impaired the obligation. It was 
left to the States to prescribe and shape the remedy to enforce it. The 
obligation of a contract consists in its binding force on the party who 
makes it. This depends on the laws in existence when it is made; 
these are necessarily referred to in all contracts, and form a part of 
them as the measure of the obligation to perform them by the one 
party, and the right acquired by the other. There can be no other 
standard by which to ascertain the extent of either, than that which the 
terms of the contract, according to their settled legal meaning, when it 
becomes consummated. 

“‘The law defines the duty and the right—compels one party to per¬ 
form the thing contracted for, and gives the other the right to enforce 
the performance by the remedies then in force. If any subsequent law 
affect to diminish the duty or impair the right, it necessarily bears on 
the obligation of the contract in favor of one party to the injury of the 
other; hence any law which, in its operation, amounts to a denial or 
obstruction of the rights accruing by a contract, though professing to 
act on the remedy, is directly obnoxious to the prohibition of the Con¬ 
stitution/ Again, after referring to the laws for enforcing the contract 
in existence at the time of making the contract, the court says: ‘These 
laws giving these rights were as perfectly binding on the defendant, and 
as much a part of the contract, as if they had been set forth in its stip¬ 
ulations in the very words of the law relating to judgments and execu¬ 
tions/ In accordance with this reasoning the court held the law of 
Illinois void, as impairing the obligation of the contract. ... It is 
not the extent to which the obligation is impaired in dollars that is 
prohibited by the Constitution, but it imperatively forbids that it shall 
be impaired at all. To impair the value of the duty to be performed by 
the debtor to his creditor to the extent of one dollar is as much prohib¬ 
ited as to do so to the extent of thousands. The entire obligation is 
made sacred and inviolable by the supreme law of the land. We there¬ 
fore conclude the sound rule to be, that such property as was subject 
to execution at the time the debt was contracted must remain subject 
to execution, or sale by other process, until the debt is paid.” 65, 228. 
Hannum v. Mclnturff. 1873. 


HOMESTEAD. 


557 


“Head of Family”—Who Was Intended by Framers of this Section— 
Widow Is—When.— Cooper, Chancellor, held: “A widow who is keeping 
house upon land allotted to her in dower, without any children of her 
own, but with live orphan children of a deceased sister who had been 
members of the family during her husband’s life, and with two other 
orphan children of her late husband, is the head of the family, within the 
meaning of the Constitution and the homestead laws 1 passed in accord¬ 
ance therewith, and entitled to the homestead exemption in the dower 
estate.” In delivering the opinion he said: “The language, both of the 
Constitution of 1870 and of the act of the legislature above quoted, 
fairly implies that the draftsmen had in their minds as ‘head of the 
family’ a husband, to whose wife and children the benefit would enure 
through him. The only thing in the act implying otherwise is the word¬ 
ing of the third section, just quoted, which says ‘his or her homestead 
shall be set apart in the following manner.’ And even here the word 
‘her’ might be limited to cases where the homestead right commenced 
in the lifetime of the husband. And yet, notwithstanding the peculiar 
phraseology of the Constitution and the act of the legislature, I can not 
think that the benefits of the homestead were intended to be thus limited. 

“The phrase, ‘head of a family,’ would clearly embrace a husband 
with a wife and children, or a husband with a wife alone occupying a 
homestead. But it has never been considered as confined within these 
narrow limits. Under the Act of 1833, ch. 80, exempting certain per¬ 
sonal property in favor of the ‘head of a family engaged in agriculture,’ 
it was held by our Supreme court that a widow who, with her children, 
lived with her father on his farm, and in the same house, and assisted 
in carrying on the farm by the aid ol her sons, was entitled to the benefit 
of the exemption. Bachman v. Crawford, 3 Hum., 213. . . . 

“The light afforded by the decision of other States being thus scanty, 
it is obvious that our courts must construe our Constitution and laws 
on this subject from their own intrinsic light, with such aid as can be 
derived from our own decisions on analogous questions. The object of 
the Constitution and the laws is to secure to a householder and family 
the benefit of a home, beyond the reach of legal process on the part of 
creditors. With the policy of the legislation the courts have nothing to 
do. Their duty is to ascertain the intention of the constitutional con¬ 
vention and tbe legislature, from the language used by them, and to 
carry out that intention in the decision of rights of individuals. Coming 
back to the language used, as hereinbefore quoted, I find that the home¬ 
stead exemption is conceded ‘to each head of a family.’ We know that, 
by the well-settled rules of constitutional and legislative interpretations, 
words importing the masculine gender include the feminine—a rule 
properly embodied in the Code, par. 50. 

1 Act* 1870, sec. sess., ch. 80, sec. 1; M. & V., 2935. 



558 


TENNESSEE CONSTITUTIONAL LAW. 


“ I also find that, by the third section of the Act of 1870, wherever 
the real estate ‘of such head of a family 9 is levied on, it is provided 
that ‘his or her homestead 9 shall be set apart, etc. I further find that 
our Supreme court in construing the words ‘head of a family/ in a 
statute exempting certain personalty, held them to include a widow 
living with her father, as before set out. I find the Supreme court of 
Georgia construing the same words as embracing a bachelor keeping 
house and supporting a mother and two sisters, and the Supreme court 
of California construing the words as embracing unmarried persons 
having the charge of minor brothers and sisters, or minor children of 
brothers and sisters. It seems to me, with these lights, that I am justi¬ 
fied in considering a widow residing upon her dower land, keeping house, 
and having the charge of the orphan children of a sister, and children 
of a sister of her late husband, as entitled to the benefit of the home¬ 
stead exemption.” Second Tenn. Chc’y Rep., p. 36. Brien ex parte. 
1874. 

Conveyance of Homestead Without Wife’s Consent — Object of this 
Clause.— Nicholson, J.: “The Constitution secures a homestead in the 
possession of each head of a family, and the improvements thereon, to 
the value in all of one thousand dollars, and exempts the same from sale 
under legal process during the life of such head of a family. The plain 
intention of this provision is, not merely to protect the husband, as the 
head of the family, in the possession and enjoyment of the homestead, 
but the protection of the interests of the wife and of the minor children, 
constituted a leading consideration for the adoption of the provision. 
This fact is apparent by the prohibition against the alienation of the 
property, without the joint consent of the husband and wife, when that 
relation exists. To give complete protection to the wife and children, 
the homestead is not only exempt from the reach of creditors of the 
husband, but he is deprived of the power to defeat the enjoyment of 
the homestead by his wife and children, by selling and conveying it, 
except by deed in which she joins.” Tenn. Leg. Rep., vol. 1, p. 316. 
Williams et al. v. Williams et al. 1874. 

When Homestead Was Alienable.—DEADERICK, J., held: “Before the 
establishment of the Constitution, on the 5th of May, 1870, there existed 
no constitutional or other legal inhibition to restrain the alienation of a 
homestead by husband, all transfers anterior to that date are valid.” 
63, 233. 1 Bilbrey v. Poston. 1874. 

Homestead Intended for Benefit of Family—Widow—Who Is and Who 
is Not.— Caldwell, J.: “The homestead exemption is intended solely 
for the benefit of the family , and none are authorized in law to partici- 


1 See same case, under Ordinance. 



HOMESTEAD. 


559 


pate in its advantages except those who come within the meaning of 
that term. Ordinarily the wife is entitled to share in the homestead, 
because she is ordinarily a member of the family; but if she voluntarily 
withdraw from the family circle without cause, and of her free choice 
live elsewhere, she then and thereby excludes herself from the enjoy¬ 
ment of the homestead with the family. So the ‘widow/ to whom the 
right of homestead inures at the death of her husband, must have been 
a member of his family in a legal sense when he died; otherwise she 
■can not successfully assert a claim to homestead in his estate after his 
death. This does not imply that she must in fact and in all instances 
have been residing with her husband upon the homestead at the time of 
his death; it is sufficient that she was, at that time, in law entitled to 
such residence with him , or with the family. But, if she has, willfully 
and without excuse, deserted the family and eloped and lived with an 
adulterer, or otherwise so demeaned herself that she may neither in 
morals nor in law require the husband to receive her back again, she is, 
in such case, not a member of his family while he lives, and does not 
become his ‘ widow 1 in contemplation of the homestead laws when he 
dies.” 87, 87. Prater v. Prater. 1888. 

Debtor Who Acquires Right of Homestead by Marriage May Assert 
That Right Against Antecedent Debts—When. — LURTON, J., held: “A 
debtor who acquires the right to homestead by reason of his marriage, 
can assert that right against antecedent debts in lands owned by him at 
the time such debts were contracted, if his creditors had fixed no lien 
upon the lands at the date of his marriage.” He said: “The contention 
of the creditor is, that, as to debts created before he became the head 
of a family, the law does impair the obligation of the contract if it be 
held applicable to property owned by the debtor before he became the 
head of a family and at the time he entered into the obligation, such 
property beiug then subject to forced sale. . . . The law which 

gives the creditor his remedy, and the law which gives the debtor his 
exemption, are as much parts of the contract as if they had been set 
forth in the stipulations of the agreement by which the debt was orig¬ 
inated. The homestead law was in force at the time this contract was 
entered into between Dye and Cooke & Co. The law has not since been 
changed. The attitude of their debtor toward the law has changed by 
his subsequent marriage. The creditor knew that if before they had 
fixed a lien upon this land their debtor should become the head of a 
family that he would be entitled to a homestead exemption. . . . 

No legal right of the creditors has been impaired, and no fraud has been 
practiced upon them. A different question would arise if they had 
acquired a lien by levy or judgment before his marriage, upon which it 
is unnecessary to intimate an opinion.” 88, 277. Dye v. Cooke. 1889. 


560 


TENNESSEE CONSTITUTIONAL LAW. 


COMMON SCHOOLS. 


PAGE. 

Power of Legislature Over Common Funds 
Under Constitutions of 1796 and 
1834—Legislature Could Compromise 


Law Suits. 560 

Common School Fund—Investment in Cap¬ 
ital Stock of Bank—Perpetual Fund 
Clause.565 


PAGE. 

This Clause Considered in Connection with 
Art. 2, Sec. 29 —Public Schools — 
Corporation Purposes. 565' 

Levy of Tax by School Districts, Void. 367 


Art. 11, Sec. 12. Knowledge, learning, and virture being 
essential to the preservation of republican institutions, and the dif¬ 
fusion of the opportunities and advantages of education through¬ 
out the different portions of the State being highly conducive to 
the promotion of this end, it shall be the duty of the general 
assembly, in all future periods of this government, to cherish 
literature and science. And the fund called the common school 
fund, and all the lands and proceeds thereof, dividends, stocks, 
and other property of every description whatever heretofore 
by law appropriated by the general assembly of this State for the 
use of common schools, and all such as shall hereafter be appro¬ 
priated, shall remain a perpetual fund, the principle of which 
shall never be diminished by legislative appropriation; and the 
interest thereof shall be inviolably appropriated to the support 
and encouragement of common schools throughout the State, 
and for the equal benefit of all the people thereof; and no laws 
shall be made authorizing said fund, or any part thereof, to be 
diverted to any other use than the support and encouragement 
of common schools. [Const. 1834, art. 11, sec. 10, down to this point 
was same as above.] The State tax derived hereafter from polls 
shall be appropriated to educational purposes, in such manner 
as the general assembly shall, from time to time, direct by law. 
No school established or aided under this section shall allow 
white and negro children to be received as scholars together in 
the same school. (The above provision shall not prevent the 
legislature from carrying into effect any laws that have been 
passed in favor of the colleges, universities, or academies, or 
from authorizing heirs or distributees to receive and enjoy 
Escheated property under such laws as may be passed from 
time to time. 2 ) 

[The clause in parenthesis above was art. 11, sec. 11, of Constitution of 
1834. In that instrument, after the sentence closing at the first brackets, was 
the following provision instead of the clauses between the last bracket 
and the first parenthetical mark above: “And it shall be the duty of the 
general assembly to appoint a board of commissioners, for such term of time 
as they may think proper, who shall have the general superintendence of said 
fund, and who shall make a report of the condition of same from time to 
time under such rules, regulations, and restrictions as may be required by 
law; provided, that if at any time hereafter a division of the public lands of 
the United States, or of the money arising from the sales of such lands, shall 
be made among the individual States, the part of such lands or money coming 
to this State shall be devoted to the purposes of education and internal 
improvement, and shall never be applied to any other purpose.”] 


Power of the Legislature Over Common Funds Under the Constitution 
of 1796 Was Absolute — Changes Made by the Constitution of 1834— 
Legislature May Compromise Law Suits — Obligation of Contract Not 
Affected. — Robert H. McEwen was State superintendent of public 
instruction under the old law (Act 1835, chapter 23), and he and his- 
bondsmen were sued to recover money lost by McEwen’s bad invest- 


1 See 32 , 47, 600; 33 , £59; 41 , 388; M. & V., 2961. 


2 Seel7,164; 50,540; 87 , 234. 








COMMON SCHOOLS. 


561 


ments. Pending the suit the legislature passed an act appointing a 
committee to compromise the suit with the sureties “upon principles of 
right and justice toward the sureties, and to the best interest of the 
school fund, and that the compromise and decision of a majority of the 
committee when made and returned into the Supreme court of the State 
should become the judgment of the court so far as the sureties were 
concerned.” This report was made. The request to have it made the 
decree of the court was resisted by counsel for complainants. Turley, 
J.: “It is argued that the tenth section of the eleventh article of the 
Constitution places the school fund beyond the control of the general 
assembly, and vests in the board of commissioners of common schools, 
who alone have the power to collect, compromise, and arrange any 
debts or demands belonging to this fund, aud placed under their super¬ 
vision by the Act of 1835, chapter 23; and that, therefore, the resolu¬ 
tions of the general assembly of January 19 and 27 are in violation of 
the provisions of the Constitution, and null and void. In the argument 
of this proposition it becomes important to inquire: first, what was the 
power of the general assembly over the common school fund previous 
to the adoption of the amended Constitution of 1834? secoud, what 
alterations has the instrument made as to this power, and what prohibi¬ 
tions has it introduced in regard to its exercise? 

“That the legislature of the State, in the absence of constitutional 
prohibition, is the proper guardian and protector of its funds, no matter 
for what purpose appropriated, and that, as such, it is its duty to watch 
over them, to see that they are properly secured, vested, and applied, 
as the law may direct, is a proposition so palpably in accordance with 
reason and necessity that it were a waste of time to enter into an argu¬ 
ment to prove it. It necessarily follows that, if these funds, or any por¬ 
tion of them, be out of the treasury, aud in the hands of a citizen, the 
power to collect, compromise, and arrange the same with the citizen 
belongs to the legislature, to be exercised according to its best judg¬ 
ment, for the security and prosperity of the State, and upon principles 
of right and justice to the citizen. This power, on the part of the legis¬ 
lature, is supreme, aud, when exercised, can not be revised or called iu 
question by any other power whatever; and it may be exercised by that 
body in its collective capacity, or it may be delegated to a commission 
—the decision of which, when made in pursuance of the power dele¬ 
gated, is equally final aud conclusive, if the delegation extend thus far. 
There is in this respect no difference arising out of the nature of the 
fund. The power is the same, be the fund appropriated or unappro¬ 
priated—whether it has been set apart for internal improvement, bank¬ 
ing operations, common schools, or auy other purpose whatever. This 
power is inherent in the legislative department of the State, and it is 
neither lost nor diminished by the fact that curators may have been 


36 


562 


TENNESSEE CONSTITUTIONAL LAW. 


appointed for the safe-keeping of the funds, or to superintend the dis¬ 
tribution of them in pursuance of appropriations made by law, such as 
a treasurer, commissioners of internal improvements, president and 
directors of a bank founded upon State funds, board of commissioners 
of common schools, etc. Then the power of the legislature over the 
school fund, previous to the adoption of the Constitution of 1834, was 
absolute and uncontrollable. It might have been diverted from the pur¬ 
poses for which it was created, at any time, and directed in an entirely 
different channel; it might have been squandered and wasted upon any 
wild scheme of speculation or improvement; it might have been appro¬ 
priated to the payment of our public debt; it might have been dis¬ 
tributed in bounties and premiums to our citizens; it might have been 
given to asylums; it might have been applied to lighten the burden of 
taxation for the time being; or disposed of in any other way that might 
have seemed meet and proper to that body. Such was the power over 
this fund, on the part of the general assembly, at the adoption of the 
Constitution of 1834. 

“What is it since? We have seen that the legislature of the State 
had evinced for years much anxiety to promote a system of common 
schools; that great attention had been paid to the accumulation of 
sufficient funds for that purpose; that all available means had been 
appropriated to it; that a board of common school commissioners had 
been established in the different counties to superintend it; and that in 
1827 legislative provision had been made for the appropriation of this 
fund forever to the use of common schools. What change upon this 
question has been effected by the Constitution of 1834? But two. The 
legislature of 1827 had appropriated the fund forever to the purposes 
for which it was created. This was a legislative promise that it should 
be held sacred; but, inasmuch as this promise was not legally binding 
on subsequent legislatures, the framers of the Constitution of 1834 were 
determined to make it sure, by establishing it as a fundamental prin¬ 
ciple not to be violated by legislative enactment. Accordingly, the 
tenth section of the eleventh article makes the fund perpetual, the 
principal of which shall never be diminished by legislative appropria¬ 
tion, and the interest of which shall be inviolably appropriated to the 
support and encouragement of common schools throughout the State, 
and prohibits the passing of any law authorizing said fund, or any part 
thereof, to be diverted to any other use than the support and encour¬ 
agement of common schools. This, then, is one change made upon the 
system as it existed at the time the Constitution was adopted. What is 
the other? 

“It is made the duty of the general assembly to appoint a general 
board of commissioners for the State (in place of the board of common 
school commissioners previously appointed in each county of the State)^ 


COMMON SCHOOLS. 


563 


who shall have the general supeiintendence of said fund, from time to 
time, under such rules, regulations, and restrictions as may be required 
by law. The Constitution of 1834, then, prohibits the legislature from 
doing one thing in relation to the subject which it might have done 
previously, to wit: passing any law diverting either the principal or 
interest of the fund from the purpose for which it was designed—the 
support of common schools. And it makes it the duty of the legislature 
to do one thing which it was not previously bound to do, viz.: to appoint 
a board of commissioners for the State, to have the general superin¬ 
tendence of the fund. All other things are left as they were previously 
to the adoption of the Constitution — that is, subject to the control and 
discretion of the legislature. 

“The question, then, arises at once, Is the adoption of the resolu¬ 
tions of the general assembly of the 19th and 27th of January, in rela¬ 
tion to the matter in controversy, a violation of either the prohibitory 
or mandatory provisions of the tenth section of the eleventh article of 
the Constitution of 1834? We have seen that these resolutions are for 
the appointment of commissioners to compromise and settle with the 
sureties of Robert H. McEwen, the matters in controversy, upon prin¬ 
ciples of right and justice towards the sureties, and to the best iuterest 
of the school fund. We have endeavored to show that the power to 
settle, arrange, and compromise any suit, or demand for money due 
from a citizen to the general treasury of the State, or which may have 
been appropriated by the State to any public institution or charity, is 
inherent in the legislative department of the State, and may be exer¬ 
cised without supervision or control, and that this power may be dele¬ 
gated. The exercise of this power, like all others belonging to the 
legislative department, can only be restricted by constitutional provision. 

“Is the exercise of it in the present case in conflict with the consti¬ 
tutional prohibition to pass any law diverting the school fund, or any 
part thereof, to any other use than the support of common schools? 
We think most clearly not. It is not an attempt at appropriation, but 
an effort to arrange, compromise, and secure a portion of the school 
fund in the hands of an individual citizen which was in jeopardy, and, 
but for the existence of this power and its exercise, might have been 
entirely lost. It is not an attempt to divert the fund to improper uses, 
but merely the surrendering a portion in order to secure the balance. 
That the power to do this ought to exist, and does exist somewhere, is 
not denied by the counsel who appear for the complainants; but it is 
argued that it properly belongs to the board of commissioners of com¬ 
mon schools; that it is dangerous to trust it with the legislature; and 
that, by fair implication, it has been taken from it. To this it is to be 
answered: First, that the power of the legislature can not be restricted 
by implication—it must be by express prohibition; second, the argu- 


564 


TENNESSEE CONSTITUTIONAL LAW. 


rneut that a power may be abused is no argument against the vesting it. 
All human power is liable to abuse, no matter where it is vested; and 
in the present case there is as much safety in the exercise of it by the 
legislature as by the board of commissioners of common schools—per¬ 
haps more. If public opinion and the responsibilities of the members 
of their constituents will not guarantee a proper exercise of it, what 
assurance have we that a board of common school commissioners may 
be entrusted with it? In avoiding Scylla, let us be careful that we do 
not fall upon Charybdis. But is this power given to the board of com¬ 
missioners, either expressly or impliedly? Most assuredly it is not by 
the Constitution. . . . 

“ These public corporations are made for public convenience. No 
private rights are involved in them, and, therefore, the legislature in 
interfering with them is in no danger of violating the obligation of con¬ 
tracts or public faith; and although it may have thought proper to 
delegate a portion of its own legitimate power to such corporation for 
the public benefit, yet the same may be resumed at any time, and exer¬ 
cised temporarily by the legislature, at its discretion; or the corpora¬ 
tion may at any moment be deprived of it altogether, and such has been 
the constant practice in this State in relation to debts due our State 
bank, which the legislature have been in the habit of compromising by 
resolution, though no one doubts that the president and board of 
directors have full power to do themselves; and this constitutes an 
important difference between a public corporation and a private one. 
The one is completely under the control of the legislature and the other 
is not, because it is the creation of a contract between the State and a 
private individual or individuals, which can not be interfered with with¬ 
out violating that provision of the Constitution which preserves the 
obligation of contracts. 

4 ‘We are, therefore, of the opinion that the resolutions adopted by 
the legislature of the 19th and 27th of January, 1844, appointing com¬ 
missioners to compromise and settle the matters in controversy in the 
present case is no violation of any rights vested in the incorporated 
board of commissioners for common schools; nor is it a violation of 
that portion of the Constitution which prohibits the passage of any law 
for diverting the school fund, or any portion thereof, to any other use 
than the support and encouragement of common schools, and that the 
legislature had full power and authority inherent to adopt said resolu¬ 
tions; that it was the proper mode to appoint the commission; that the 
commissioners had full power and authority delegated to them to make 
the compromise; that it has been made in pursuance of that power and 
is binding and obligatory upon this court and all persons concerned, and 
do decree accordingly.” 1 24,282. The Governor el al.v. McEwen. 1844. 


1 See 30, 582 ; 44, 100. 



COMMON SCHOOLS. 


56") 


Common School Fund — Investment in Capital Stock of Bank_“Per¬ 

petual Fund Clause.”—N icholson, J.: ‘‘The legislature intended to make, 
and did make, the common school fund a part of the capital of the 
bank. But it is insisted that under the Constitution of 1834 the legis¬ 
lature had no power to vest the common school fund as capital in the 
bank so as to divest it of its character as a trust fund. It is declared 
in the Constitution of 1834 that the common school fund shall remain a 
perpetual fund, the principal of which shall never be diminished by 
legislative appropriation —that ‘the interest of the school fund shall be 
inviolably appropriated to the support and encouragement of common 
schools/ and that ‘ no law shall be made authorizing said fund, or any 
part thereof, to be diverted to any other use than the support and 
encouragement of common schools.’ There is no ambiguity in this lan¬ 
guage of the Constitution. It dedicates the school fund as a perpetual 
fund, which is not to be diminished by legislative appropriations, but 
the interest thereof is to be inviolably used for the support of common 
schools. It is a trust fuud, to be controlled and managed by the legis¬ 
lature, but so managed and controlled as to keep the principal undi- 
miuished, but at the same time to make interest for use in supporting 
and encouraging common schools.” 64,18. 1 The State and Watson, Tr., 
v. Bank of Tennessee et al. 1875. 

This Clause Construed in Connection With Art. 2, Sec. 29—Public 
Schools — Corporation Purposes. — COOPER, J.: “The language of this 
section, both in the earlier and later Constitution, plainly shows the 
intent of the people that the education of the children through a system 
of common schools should be a State purpose. And the existence of a 
common school fund at the time of the adoption of the Constitution of 
1834 also clearly shows that the legislature, without any positive consti¬ 
tutional direction, had always considered education, to use the lauguage 
of Judge Cooley, ‘a prime object of American government.’ As soon as 
the growth of our cities, and the increasing prosperity of the State would 
justify it, the legislature began to confer upon the counties and incor¬ 
porated towns the power to establish and sustain, or aid in sustaining, 
public schools. If the State alone managed the common schools, the 
richer and more populous couuties would bear the larger part of the 
burden on the entire State, which might be right enough to a certaiu 
extent, all parts of the State being interested in the education of the 
people. But it was obvious that the richer and more populous couuties 
needed greater facilities of education than those afforded by the State, 
and ought to have the exclusive benefit of the increased taxation upon 
them rendered necessary for the purpose. No better mode could pos¬ 
sibly be devised for attaining these ends than the entrusting to the 


* See same case, art. 1, sec. 20, p. 168. 



566 


TENNESSEE CONSTITUTIONAL LAW. 


counties and the incorporated towns, as parts and agents of the State 
government, the power to organize, support, and control the system of 
public schools, within their limits, or to aid the same by taxation. 

“ The powers of municipal corporations are usually only parts or 
parcels of the powers of the State government, entrusted to them for 
the better security and advantage of the people. The preservation of 
the public peace is one of the principal duties of the State, yet a part 
of the duty may, and always has been, entrusted to the local munic¬ 
ipalities. The same is true of the creation and keeping up of public 
roads, and of the preservation of the public health. It seemed to 
the legislature to follow, of course, that its power over public schools 
might, to a certain extent, be entrusted to its counties and incorporated 
towns. This was done, as we have seen, probably a third of a century 
ago, in some of our more populous incorporated cities. And that the 
establishment and support of a system of free schools in such cities 
was a legitimate corporation purpose, was conceded by the counsel, and 
taken for granted by the whole court, in the case of 1 East Tennessee 
University v. Knoxville. . . . It is suggested that the funds to be 

devoted to educational purposes, beyond those previously appropriated T 
are limited by the Constitution, art. 11, sec. 12, already quoted, to the 
State tax derived from polls. But the section of the Constitution 
referred to expressly contemplates future legislative appropriations by 
specially mentioning, as prospective additions to the school fund, ‘all 
such (funds and other property of every description whatever) as shall 
hereafter be appropriated.’ And there is not the slightest intimation in 
the whole section of any design to limit the legislative power in relation 
to common schools.” 83, 642. 2 Ballentine v. Mayor etc. of Pulaski. 1885. 

Art. 11, Sec. 13. The general assembly shall have power 
to enact laws for the protection and preservation of game and 
fish within the State, and such laws may be enacted for and 
applied and enforced in particular counties or geographical dis¬ 
tricts designated by the general assembly. 


^rt. 2, sec. 29, p. 364. 

2 See same case. art. 1, sec. 8, p. 68; art. 2, sec. 2, p. 252; art. 2, sec. 17, p. 277; art. 2, sec. 28, p. 333: 
art. 2, sec. 29, p. 365; art. 11, sec. 8, p. 541. 



INTERMARRIAGE OF THE RACES. 


567 


INTERMARRIAGE OF THE RACES. 


Art. 11, Sec. 14. The intermarriage of white persons with 
negroes, mulattoes, or persons of mixed blood descended from a 
negro to the third generation, inclusive, or their living together 
as man and wife, in this State, is prohibited. The legislature 
shall enforce this section by appropriate legislation. 

The Institution of Marriage—How Regarded by Civilized Nations 
From the Days of Adam and Abraham to the Present Time—Relations 
Between State and Federal Governments—Authority of Each Over the 
States—Province and Duty of State and Federal Courts—State May Pass 
a Law Prohibiting the Intermarriage or Cohabitation of Negroes and 
Whites—Civil Rights Bill. — Sneed, J.: “It is the glory and boast of 
our written Constitution that the powers of the law-makers are restricted 
and defined; and while it is the legitimate and lawful province of the 
Supreme judicial tribunal of the Union to determine the validity of a 
statute assumed to have been enacted under the authority of the 
organic law, it is no less the prerogative of the State tribunal to 
interpret its own State laws, and to pronounce upon their com¬ 
patibility with the supreme organic law. Aud to this end they may 
look beyond a statute of the general government which seems to col¬ 
lide with the law aud polity of the State, to ascertain whether such 
statute is made in pursuance of an authority vested by the supreme 
organic law; for it is not every act of congress that the ‘judges in 
every State’ shall be bound by, but only such as are passed in pursuance 
of the authority granted by the Constitution. And this power of a State 
court to pronounce upon the validity of an act of congress which is 
made to operate upon the people, subject to the jurisdiction of said 
court, has been exercised from the foundation of the government, of 
which we have a notable illustration in the action of half a dozen State 
courts within the last few years in declaring the Stamp Acts of con¬ 
gress, so far as they changed or interfered with the rules of evidence in 
the State courts, to be unconstitutional and void. Until the Supreme 
appellate tribunal of the Union shall declare otherwise, that question is 
at rest in the States whose courts have so decided. The government of 
the United States being one of limited powers, is, therefore, supreme 
only to the extent of the granted powers, and all laws upon the rights, 
duties aud subjects specially enumerated and confined to its jurisdic¬ 
tion are necessarily exclusive and supreme. Sims Case, 7 Cush., 729. 
If, therefore, a law be enacted not authorized by the enumerated or 
clearly implied powers, it is not in the sense of the Constitution the 
supreme law of the land, and the courts of the States are not bound to 
carry it into execution. But the Supreme court of the United States is 
the tribunal of last resort on all such questions, whose judgment is 


568 


TENNESSEE CONSTITUTIONAL LAW. 


conclusive and final upon the question whether an act of congress be or 
be not the supreme law of the land. Ableman v. Booth, 21 How., 519. 
When it is so declared, it is as much the duty of the State courts to 
accept and enforce it as it is their province and duty, in the first 
instance, to question its validity, and decline to enforce it, when in their 
judgment it has been enacted without authority. 

“‘Among the powers/ said Judge Curtis before the late amendments, 
‘unquestionably possessed by the States was that of determining what 
persons should and what persons should not be citizens; and each State 
must determine/ said he, ‘what civil rights shall be enjoyed by its citi¬ 
zens, and whether all shall enjoy the same, or how they may be gained 
or lost.’ Scott v. Sandford, 19 How., 583. In the evil days to which 
we have brought ourselves by our late unhappy feuds, we are too 
apt to forget the moorings of the law where our fathers left us. While 
it is our first duty to respect and obey every valid law that emanates 
from the law-making power of the Federal government, yet we are too 
prone to magnify the civic powers of a government which has so lately 
crushed a dozen great States by an exhibition of military power that 
might have defied the world, and lawyer and law-giver, court and com¬ 
monwealth, to bow without question to the civic will of the victor. The 
Goths of ancient Germany, it is said, were accustomed to debate every 
important measure twice in their councils; once while drunk, that their 
debates might not lack vigor, and again while sober, that they might not 
lack discretion. Now, that we have returned to the blessed paths of 
soberness and peace, when human rights and human wrongs are to be 
vindicated and redressed by the laws of the land, and not by the logic 
of the bullet and bayonet, it is well to look back upon our landmarks 
which our fathers have set and ascertain what rights the States have not 
been bereft of as the result of the late unhappy civil war. And promi¬ 
nent and paramount among these is the provision that ‘the powers not 
delegated to the United States by the Constitution, nor prohibited by it 
to the States, are reserved to the States respectively, and to the people. 
Am. 10, Const. U. S. The powers delegated to the United States, and 
those prohibited by it to the States, are ascertained and defined by the 
terms of the Constitution itself. ‘Those which are to remain in the 
State governments/ said Mr. Madison, ‘ are numerous and indefinite.’ 
The power reserved to the several States will extend to all objects 
which, in the ordinary course of affairs, concern the lives, liberty, and 
properties of the people, and the internal order, improvement, and pros¬ 
perity of the State.’ Federalist, No. 45. Perhaps we will be unable to 
find embodied in a few words so correct an idea of the general powers 
reserved to the States as in this brief observation of one who was, with¬ 
out disparagement to his renowned compeers, the best authority, living 
or dead, upon the sense and meaning of our fundamental law. 


INTERMARRIAGE OF THE RACES. 


569 


“The congress of the United States has never, from the foundation 
of the government, interfered with the internal policy of the State, in 
regard to marriage or the other domestic relations, and we apprehend it 
never will. Those things have been left where the Constitution left 
them, and where Mr. Madison left them, to the States which control all 
matters ‘that concern the lives, liberties and properties of the people, 
and the internal order, improvement and prosperity of the State.’ But 
it is said that old things have passed away, and all things have become 
new; and that the late amendments which give freedom to the slave, 
and confer upon him the right of suffrage, and guarantee to him the 
equal protection of the law, vouchsafe to him, also, the right of inter¬ 
marriage with the white race. The Fourteenth Amendment to the Con¬ 
stitution of the United States, or so much of it as is important to be 
considered here, is in the following words: ‘All persons born or natural¬ 
ized in the United States, and subject to the jurisdiction thereof, are 
citizens of the United States, and of the State wherein they reside. No 
State shall make or enforce any law which shall abridge the privileges 
or immunities of citizens of the United States; nor shall any State 
deprive any person of life, liberty or property, without due process of 
law, nor deny to any person within its jurisdiction the equal protection 
of the laws.’ What is called the Enforcement Act, which was passed to 
give effeot to the provisions of the Fourteenth Amendment, as applica¬ 
ble to the question before us, is as follows: ‘All persons within the 
jurisdiction of the United States, shall have the same right in every 
State and Territory of the United States, to make and enforce contracts, 
to sue, be parties, give evidence, and to the full and equal benefit of all 
laws and proceedings for the security of person and property, as is 
enjoyed by white citizeus, and shall be subject to like punishment, 
pains, penalties, taxes, licenses and exactions, of every kind, and uone 
other; any law, statute, ordinance, regulation or custom, to the contrary 
notwithstanding. 

“TheCivil Rights Bill, passed to give effect to the Thirteenth Amend¬ 
ment, which gave freedom to the slaves, is substantially and almost 
literally the same as the foregoing. The Enforcement Bill became a law 
on the 31st day of May, 1870, and the Civil Rights Bill several years 
before. If the African, iu this country, has been elevated to a perfect 
equality in social, as well as political, rights with the Caucasian; if that 
race can claim at all the right to marry and be given in marriage with 
the sons and daughters of our people, it must be claimed alone by virtue 
of the foregoing amendments and the laws enacted for their enforce¬ 
ment. The State, then, is forbidden from making and enforcing any 
law which shall abridge the privileges and immunities of citizens of the 
United States. It is said that the words ‘rights, privileges, and immu¬ 
nities/ are abusively used, as if they were synonymous. The word 


570 


TENNESSEE CONSTITUTIONAL LAW. 


‘ rights/ is generic, common, embracing whatever may be lawfully 
claimed. Privileges are special rights, belonging to the individual or 
class, and not to the mass; properly, an exemption from some general 
burden, obligation or duty; a right peculiar to some individual or body. 
Immunities are rights of exemption only—freedom from what other¬ 
wise would be a duty or burden. Bates on Citizenship, 22. ‘ These 

privileges and immunities/ said Washington, J., ‘may be all compre¬ 
hended under the following general heads: Protection by the govern¬ 
ment; the enjoyment of life and liberty, with the right to acquire and 
possess property of every kind, and to pursue and obtain happiness 
and safety; subject , nevertheless , to such restraints as the government 
may justly prescribe for the general good of the whole. 

“ The right of the citizen of one State to pass through or reside in 
any other State, for purposes of trade, agriculture, professional pursuits 
or otherwise; to claim the benefit of the writ of habeas corpus; to insti¬ 
tute and maintain actions of every kind in the courts of the State; to 
take, hold, and dispose of property, both real and personal; and an 
exemption from higher taxes or impositions than are paid by the other 
citizens of the State; to which may be added the elective franchise, as 
regulated and established by the laws and Constitution of the State in 
which it is to be exercised. Corfield v. Coryell, 4 Wash. C. C., 380- 
These are some of the privileges and immunities intended to be guar¬ 
anteed to the citizen, ‘subject/ says the learned judge, ‘to such 
restraints as the government may justly prescribe for the general good 
of the whole.’ There are many others not herein enumerated, and upon 
which the courts will decide as the cases arise. Conner v. Elliott, 18- 
How., 591. The right of intermarriage among the races is, in the 
opinion of the court, not one of them. Nor is marriage a contract, in 
the sense of the Constitution, which may be ‘made and enforced.’ It i& 
called, in many of the books, a civil contract, for the want of a better 
phrase. A contract, in the sense of these enactments, is such an agree¬ 
ment as may be specifically enforced, like a contract to pay money or 
to deliver property. Marriage is a mere covenant of the will; it may be 
considered, while executory, a contract, the breach of which is expiated 
in damages; but it reposes upon the consent of the parties. If that 
consent is withdrawn, there is no such thing known to our law as its 
specific enforcement. It, therefore, differs essentially from that species 
of contract contemplated by the Constitution, which may be made and 
then enforced in the courts, and the obligation of which can not be 
impaired by the legislative department. In the ecclesiastical law, it is 
defined to be a covenant between a man and a woman, in which they 
mutually promise cohabitation and a continual care to promote the 
comfort and happiness of each other. It is an institution of God, and a 
very honorable state. The Saviour honored it by his presence, and at 


INTERMARRIAGE OF THE RACES. 


571 


such a solemnity wrought his first miracle. Buck Theo. Die., 261; Heb., 
xiii; Gen., ii; John, ii. ‘It is the civil status/ says Mr. Bishop, ‘of a 
man and a woman, united in law for life. In the sense in which it is 
dealt with by a decree of divorce, it is not a contract, but one of the 
domestic relations. It derives both its rights and its duties from a 
source higher than any contract of which the parties are capable; and 
as to these, it is uncontrollable by any contract they can make. Although 
it may be formed by a contract, yet when formed it has none of the 
attributes of a contract, but becomes a domestic relation. And/ says 
he, ‘it is no more a contract than a fatherhood, or sonship, or serfdom, 
or slavery, or apprenticeship are contracts/ 1 Bish. Mar. and Div., 10. 
‘Thus/ says Robertson, C. J., ‘marriage, though in one sense a contract, 
because, being both stipulatory and consensual, it can not be valid 
without the spontaneous concurrence of two competent minds, is, 
nevertheless, sui generis , and, unlike ordinary or commercial contracts, 
is publici juris, because it establishes fundamental and most important 
domestic relations. And therefore, as every well-organized society is 
essentially interested in the existence and harmony and decorum of all 
its social relations, marriage, the most elementary and useful of all, is 
regulated and controlled by the sovereign power of the State/ Maguire 
v. Maguire, 7 Dana, 181. It is said, again, to be the particular glory of 
the social system; and the idea that any government could, consistently 
with the general weal, permit this institution to become merely a matter 
of bargain between men and women, and not regulate it by its own 
power, is too absurd to require a word of refutation/ 1 Bish., 13; 2 
Story's Conf. Laws, sec. 108; 1 Id., sec. 200. 

“The highest and holiest duty of every government is to provide for 
the happiness and general welfare of its people. How and in what man¬ 
ner this is to be best subserved is a question for the political power; 
and the police power, which is inherent in all governments, is to be 
exercised without question. These powers, like privileges and immuni¬ 
ties, heretofore considered in this opinion, can not well be enumerated. 
‘The framers of the Constitution/ said Marshall, C. J., ‘did not intend 
to restrain the States in the regulation of their civil institutions adopted 
for internal government, and the instrument they have given us is not 
to be so construed/ Dartmouth College v. Woodward, 4 Wheat., 518-629. 
These police powers of the State extend to every conceivable subject where 
the good order, the domestic peace, the private happiness or public 
welfare of the people demand legislation. Unless that legislation is 
inhibited in the fundamental law, no State has acquitted itself of the 
duties of government without it. We hold that such legislation is not, 
never has been, and never should be prohibited to the States in refer¬ 
ence to the intermarriage of the races. It has been repeatedly held by 
the Supreme court of the United States that a State may determine the 


572 


TENNESSEE CONSTITUTIONAL LAW. 


status of persons within its jurisdiction. Groves v. Slaughter, 15 Pet., 
419; Moore v. Illinois, 14 How., 13; 11 Pet., 131; Story Const., secs. 
1098, 1804, 1809. The right to regulate the institution of marriage, to 
classify the parties and persons who may lawfully marry, to dissolve the 
relation by divorce, and to impose such restraints upon the relation as 
the laws of God and the laws of propriety demand, has been exercised 
by all governments, and in all ages of the world. The discrimination as 
to race and people in this most important institution has been observed 
even from the days of the patriarchs, and even as to different people of 
the same race. ‘Thou shalt not/ said Abraham, ‘take a wife unto my 
son of the daughters of the Canaanites, among whom I dwell; but thou 
shalt go unto my country, and to my kindred, and take a wife unto my 
son Isaac.’ Gen., xxiv. 

“The laws of civilization demand that the races be kept apart in 
this country. The progress of either does not depend upon an admixture 
of blood. A sound philanthropy, looking to the public peace and the 
happiness of both races, would regard any effort to intermerge the indi¬ 
viduality of the races as a calamity full of the saddest and gloomiest 
portent to the generations that are to come after us. They are among 
us. They were faithful as slaves, and are becoming useful and valuable 
as laborers. There is scarce a family in the South that has not some 
memory, fresh and grateful, of affection and fidelity in these people 
during the late sad war. These should commend them to the protec¬ 
tion and charity of our people. The courts will protect them in the 
enjoyment of every civil right guaranteed to the most favored citizen, 
for such we understood to be the sense of the amendments. Their 
rights, social, civil, political, and religious, will be jealously guarded; 
but they must not marry or be given in marriage with the sons and 
daughters of our people. Such was the policy of our own legislation, as 
to bond and free, fifty years ago, and was at the time of the amendments 
in question. Such, also, were the laws of the British colonies in this 
country, re-enacted after the separation by the thirteen States. In 
Massachusetts the Colonial Act of 1707, entitled ‘An Act for the better 
preventing of a spurious and mixed issue/ was re-enacted under the 
State government in 1786, forbidding the intermarraige of the black and 
white races, and degrading the unhappy issue of such marriage with 
the stain of bastardy. And long after the abolition of slavery in that 
State, in the carefully revised Code of 1836, this ‘ mark of degradation/ 
says Taney, C. J., ‘was again impressed upon the race.’ 19 How., 413. 
And such, indeed, we believe, was the law of every State. The congress 
has the same right to regulate this relation in the District of Columbia 
and in the territories that the States have within their own jurisdictions, 
and this power is at this moment being exercised in Utah in the supres- 
sion of polygamy. We are of opinion that the late amendments to the 


INTERMARRIAGE OF THE RACES. 


573 


Constitution of the United States, and the laws enacted for their enforce¬ 
ment, do not interfere with the rights of the States, as enjoyed since the 
foundation of the government, to interdict improper marriages, and that 
the *Act of 1870, ch. 39, which forbids the intermarriage of white persons 
with negroes, mulattoes, or persons of mixed blood, descended from a 
negro to the third generation, inclusive, and their living together as man 
and wife, in this State, is a valid and constitutional enactment.” 50,303. 
Lonas v. The State. 1871. 


Art. 11, Sec. 15. No person shall, in time of peace, be 
required to perform any service to the public, on any day set 
apart by his religion as a day of rest. 


Art. 11, Sec. 16. The declaration of rights hereto pre¬ 
fixed, is declared to be a part of the Constitution of this State, 
and shall never be violated on any pretense whatever. And to 
guard against transgression of the high powers we have dele¬ 
gated, we declare that everything in the Bill of Rights con¬ 
tained, is excepted out of the general powers of the government, 
and shall forever remain inviolate. [Same as Const. 1834, art. 11, sec. 
12. Const. 1796, art. 10, sec. 4, contained the word “ annexed ” instead of the 
word “ prefixed,” and also contained the words “and every other right not 
hereby delegated” after the word “contained” and before the word “is.” 
Otherwise the same.] 


Art. 11, Sec. 17. No county office created by the legisla¬ 
ture shall be filled otherwise than by the people of the County 
court. 2 


1 M. & V., 3229. 

a See art. 4, sec. 1, Cook v. The State, p. 394; art. 6, sec. 4, The State v. Glenn, p. 429: art. 7, sec. 
4, Luehrman v. Taxing District of Shelby County, p. 473. 


I 



574 


TENNESSEE CONSTITUTIONAL LAW. 


SCHEDULE. 

Officers and Offices. 


Schedule, Section 1. That no inconvenience may arise from 
a change of the Constitution, it is declared that the governor of 
the State, the members of the general assembly, and all officers 
elected at or after the general election of March, 1870, shall hold 
their offices for the terms prescribed in this Constitution. 

Officers appointed by the courts shall be filled by appoint¬ 
ment, to be made and to take effect during the first term of the 
court held by judges elected under this Constitution. 

All other officers shall vacate their places thirty days after 
the day fixed for the election of their successors under this Con¬ 
stitution. 

The secretary of the State, comptroller and treasurer shall 
hold their offices under the first session of the present general 
assembly occurring after the ratification of this Constitution, and 
until their successors are elected and qualified. 

The officers then elected shall hold their offices until the 
fifteenth day of January, 1873. 


Clerk and Master—Appointment Of. — NICHOLSON, J.: “It is obvious 
that the paramount object of this section of the schedule was to con¬ 
tinue in office those holding offices when the Constitution was adopted, 
and to fix a limit to their continuance. Baldwin was an officer appointed 
by a court. By this section he was continued in office until the close of 
the first term of the court held by the chancellor elected under the 
Constitution. He was therefore clerk and master during the January 
term, 1871, that being the first term, and with the close of that term 
his office would have terminated, as the chancellor made no new 
appointment, but for the provision in art. 7, sec. 5, of the Constitution, 
which provides that every officer shall hold his office until his successor 
is elected or appointed, and qualified. Baldwin was therefore continued 
in office by the failure of the chancellor to appoint his successor at the 
January term, 1871, but this continuance was only to operate until his 
successor was appointed and qualified. By art. 6, sec. 13, of the Consti¬ 
tution, chancellors have the power to appoint their clerks and masters, 
and under this section Chancellor Nixon had the power to appoint 
Baldwin’s successor. This power was in nowise interfered with or 
restricted by the first section of the schedule. That section was intended 
to limit the continuance of the clerk and master’s office, but not intended 
to make it imperative on the chancellor to till the office during that term 
or to deprive him of the power to do so afterwards.” 54, 415. In the 
matter of Baldwin. 1872. 

Right of Officers to Continue in Office—This Clause Construed._ 

Nicholson, J.: “This section distinctly recognizes the right of all officers 
elected after the general election in March, 1870, to continue in office 


OFFICERS AND OFFICES. 


575 


for the terms prescribed in the body of the Constitution. The necessary 
interpretation of this language is, that any elections authorized to be 
held by laws existing at the March election or afterward, and before the 
time fixed for the first general election in August, 1870, shall not be 
interfered with by the Constitution, but the law authorizing them shall 
continue in force until they expire, and the officers so elected shall hold 
their offices for the terms prescribed in the Constitution. It is, there¬ 
fore, clear that the election on the fourth Monday in May, 1870, was 
iegal. , ’ 56, 802. 1 Brinkley v. Bedford. 1872. 

Clerk and Master. — Burton, Sp. J., held: “The accidental fact that 
no Chancery court was held at Carthage after the adoption of the Con¬ 
stitution of 1870, until August, 1871, did not have the effect ... to 
continue in office a clerk and master who had been appointed on the 
fourteenth day of February, 1865. But, on the contrary, the office was 
then vacant, and subject to be filled by the chancellor of the district at 
that time.” 61, 238. 2 Gold v. Fite. 1872. 

Schedule, Sec. 2. At the first election of judges under this 
Constitution there shall be elected six judges of the Supreme 
court, two from each grand division of the State, who shall hold 
their offices for the*term herein prescribed. 

In the event any vacancy shall occur in the office of either 
of said judges at any time after the first day of January, 1873, it 
shall remain unfilled and the court shall from that time be con¬ 
stituted of five judges. 

While the court shall consist of six judges, they may sit in 
two sections, and may hear and determine causes in each at the 
same time, but not in different grand divisions at the same time. 

When so sitting the concurrence of two judges shall be neces¬ 
sary to a decision. 

The attorney general and reporter for the State shall be 
appointed after the election and qualification of the judges of 
the Supreme court herein provided for. 3 

Schedule, Sec. 3. Every judge and every officer of the 
executive department of this State, and every sheriff holding 
over under this Constitution, shall, within twenty days after the 
ratification of this Constitution is proclaimed, take an oath to 
support the same; and the failure of any officer to take such 
oath shall vacate his office. 


1 See same case, art. 7, sec. 5, p. 475; art. 11, sec. 1, p. 504. 

»See same case, art. 7, sec. 4, p. 472. * See Perkins v. Scales, art. 2, sec. 2, p. 252. 



576 


TENNESSEE CONSTITUTIONAL LAW. 


STATUTES OF LIMITATIONS AND WRITS OF ERROR. 


PAGE. 

Statutes of Limitations—Right of Redemp¬ 


tion. 576 

Writ of Error—Vested Rights.576 

Power of Legislature to Extend Statutes of 

Limitations. 578 


PAGE. 

Doctrine Reaffirmed. 579 

Lost Remedy Can Not be Revived by Con¬ 
stitutional Convention. 579 


Schedule, Sec. 4. The time which has elapsed since the 
sixth day of May, 1861, until the first day of January, 1867, shall 
not be computed in any cases affected by the statutes of limita¬ 
tions, nor shall any writ of error be affected by such lapse of time. 1 

Done in convention at Nashville, the twenty-third day of 
February, in the year of our Lord one thousand eight hundred 
and seventy, and of the independence of the United States the 
ninety-fourth. In testimony whereof, we have hereunto set our 
names. 1 [ 1 Signed by all the members of the convention. See p. — for 

their names.] 

[Amendment of 1865 Schedule, Sec, 4: “No statute of limitations shall be held to operate from 
and after the sixth day of May, 1861, until such time hereafter as the legislature may prescribe, 
nor shall any writ of error be refused or abated in any cause or suit decided since the sixth day 
of May, 1861, aud prior to this time, by reason of any lapse of time; and in all actions for torts, 
brought, or which may hereafter be brought in the courts of this State by attachment levied 
upon the property of the defendant, the court shall have power to proceed to judgment and col¬ 
lection of the same as upon contracts, without personal service of process upon the defendant, 
until the legislature may see fit to change the law in such cases.” 2 ] 

Statute of Limitation — Rig-lit of Redemption. — SMITH, J., held: 
“The fourth section, chapter 10, of the Act passed the eighteenth of May r 
1865, is unconstitutional and void, so far as it undertakes to authorize 
the redemption of land sold more than two years before the passage of 
this act, and which the debtor did not offer to redeem within two years 
after the sale. This is the general rule. . . . The exception to the 

rule is, where fraud prevented a redemption, or the time is extended by 
the parties; or, perhaps, exceptions should be allowed on account of 
duress, imprisonment, or overwhelming power, and the like; or when 
war was raging in the country of the residence of the debtor and pur¬ 
chaser ; or on the ground that courts of equity grant relief, under many 
circumstances, against forfeiture, etc.” 46, 221. Reynolds v. Baker et 
al. 1869. 

Writ of Error — Vested Rights. — ANDREWS, J.: “The writ of error in 
this cause is not within the saving of the above section. The final 
decree was rendered August 31, 1860; more than eight months prior to 
the date therein fixed. And we can not say that in cases decided prior 
to May 6, 1861, the bar of the statute being but partly accomplished, 
the time ceased to run against that writ after that date; for that would 
be to make the section say in effect, what it does not say in terms, aud 
what it impliedly excludes, that the writ of error should not be refused 
or barred by reason of lapse of time in any cause decided within one 
year prior to the sixth day of May, 1861. Neither is this case provided 


1 See 48 . 278 ; 58 , 306 ; 59 , 443. 


2 See 42 , 153; 43 , 23, 299; 45 , 247; 47 , 15, 193: 64 . 18. 









STATUTES OF LIMITATIONS ANI> WRITS OF ERROR. 


577 


for by that clause of the section above quoted, which declares that 1 no 
statute of limitations shall be held to operate from and after the sixth 
day of May, 1861/ etc. It is true that a proceeding by writ of error is 
often spoken of as being an action, or in the nature of an action. And 
in this view, the statute limiting the time in which such a writ may be 
sued out, might not inappropriately be termed a statute of limitation. 
But this term is not usually applied to the statutes regulating appellate 
proceedings, and can not have that application in the section of the 
schedule now under consideration. In Reynolds v. Baker, decided by 
this court at the last special term at Knoxville, the same constitutional 
provision was held not to be applicable to the statutes regulating the 
time within which land sold under execution might be redeemed; and 
much of the reasoning in that case will apply to the present. But the 
express provision made for writs of error in the same section, shows 
conclusively that it was not intended to embrace the statutes regulating 
these writs within the general provision in regard to statutes of limita¬ 
tion. 

“On the thirtieth day of May, 1865, an J act was passed by the legis¬ 
lature which repeated the above constitutional provision, that no statute 
of limitation shall be held to operate from and after the sixth day of 
May, 1861; fixes the first day of January, 1867, as the date from which 
the statute shall again commence to run, and then declares: 1 Nor shall 
any writ of error be refused or barred in any suit decided since the 
sixth day of May, 1861, or within one year immediately prior to that date } 
by reason of lapse of time. The statute in express terms provides for 
the present case, but we are compelled to hold it in its application to 
this case invalid. At the time of the passage of this act, the writ of 
error was completely barred under the existing law, and no mere legis¬ 
lation could bestow a new right to the writ. In regard to statutes of 
limitation, properly so called, it is held that when the period prescribed 
by statutes has already run, so as to extinguish a claim which one might 
have made to property in possession of another, the title to the property 
will be regarded as vested in the possessor. Cooley, Const. Lim., 365. 
A statute attempting to confer the right to au appeal or writ of error 
from a final decree adjudicating the right of property, after the time 
allowed by the previously existing law has expired, would be objection¬ 
able as an invasion of vested rights. It can not give a new right to a 
new party without taking away a corresponding right from the other 
party. Sedgw. ou Const. Law, 195, 196; Angell on Lim., p. 11. In 
Sampeyreac v. United States, 7 Pet.,.222, it seems to have been thought 
by the court that an act of congress giving the right to file a bill of 
review where no such right existed before, and after the time allowed 
for appeal had expired, was valid; but the case went off upon the point 

•Act 1865, ch. 10, sec. 1; T. & S., 2762a; M. & V., 3457. 


37 


578 


TENNESSEE CONSTITUTIONAL LAW. 


that the former decree was a nullity, being in favor of a fictitious per¬ 
son, and the precise question was not decided, the court holding 
properly, that under the Constitution of the United States, the retro¬ 
spective charter of this legislation constituted no objection to it. The 
act of the legislature purports to confer upon one of the parties to a 
litigation already terminated, a right against the other party which had 
no existence at the time of the passage of the act. Such legislation is 
an attempt to confer a right, and not merely a regulation of the remedy. 
The result is that the writ of error in this cause was not obtained within 
the time limited by the law, and it must be dismissed/' Thomp. Tenu. 
Cases, p. 274. Trim v. McPherson. 1869. 

Statute of Limitations—Power of the Legislature to Extend. — SHIELDS, 
Sp. J.: “The question is as to the power to extend the time when the 
cause of action is already barred; and it has been uniformly held, so far 
as our researches have extended, that it can not be done. In the case 
of Woart v. Winnick, 3 N. H. Rep., 473, it was expressly held that an act 
of the legislature repealing an act of limitation was, with respect to all 
actions pending at the time of the repeal which were previously barred, 
null and void. This case, however, was decided under a provision of the 
Constitution of that State. But in many other cases, iu the States of 
Massachusetts, Michigan, Arkausas, Mississippi, Pennsylvania, Iowa, 
Indiana, aud Vermont, cited by Mr. Angell in his highly esteemed and 
authoritative work on Limitations of Actions at Law, the same general 
doctrines seem to have been held. Ang. on Lim., 22,23, note. Although 
our own courts seem not to have been called upon heretofore to adjudicate 
this precise question, yet they have uniformly held that a claim barred 
by a statute of limitation is deemed in law to be extinguished and dis¬ 
charged (9 Yerg., 543); aud, consequently, to revive it is to interfere 
with a vested right. In some of the cases, and also in some of the text- 
writers, as in Cooley, 365, the subject-matter of the controversy and of 
the application of the doctrine is mentioned as property; in others the 
rule is stated as being applicable to all demands that are barred. There 
can be no difference in principle whether it is a right to recover land or 
personal property in specie, or damages for the breach of a contract, or 
for a tort. We therefore hold section 4 of the Schedule of the amended 
Constitution of 1865, and section 4 of the Schedule of the new Constitu¬ 
tion of 1870, and the Act of May 30, 1865, ch. 10, sec. 1, so far as by 
their terms and effect they authorize the institution of suits to recover 
on demands, whether arising ex contractu or ex delicto , that were, at the 
times of these several enactments aud resolutions, already barred by 
existing laws, to be null and void.” 48, 287. Girdner v. Stephens. 
1870. 


See 54, 342. Also p. 124, this volume. 



STATUTES OF LIMITATIONS AND WRITS OF ERROR. 579 


Doctrine Adhered To.— In this case the doctrine announced in Gird- 
ner v. Stephens was adhered to without discussion, Nicholson, J., 
delivering the opinion of the court. 53, 323. Mynatt and Howell v. 
Hubbs. 1871. 

Lost Remedy Can Not be Revived by Constitutional Convention.— 
Referring to the above case of Girdner v. Stephens, Nicholson, J., said: 
“It was not held in that case, nor iutended to be held, that there were 
no vested rights which could be impaired by subsequent legislation. 
The numerous instances in which the courts have held that vested rights 
might be divested by subsequent legislation, without violating the 
Federal Constitution, were examined and considered in preparing the 
opinion in that case, and they were not regarded as in conflict with the 
conclusion announced. Those cases (and they have been cited in this 
argument) establish the proposition that the prohibition of the Federal 
Constitution does not prevent the States, either through their conven¬ 
tions or legislatures, from impairing vested rights, provided always, those 
vested rights are not so dependent on the obligations of contracts as to 
render them obnoxious to the prohibition of the Federal Constitution. 
The remarks of Judge Cooley, at p. 369, fully sustain the conclusion in the 
case of Girdner v. Stephens, and seems to us to place the question in a 
light that is unanswerable. ‘As to the circumstances under which a man 
may be said to have a vested right to a defense, it is somewhat difficult to 
lay down a comprehensive rule. He who has satisfied a demand can not 
have it revived against him, and he who has become released from a 
demand by the operation of the statute of limitations is equally pro¬ 
tected. In both cases the right is gone, and to restore it would be to 
create a new contract for the parties—a thing quite beyond the power 
of legislation/ 

“Why is the right, acquired by the lapse of the time prescribed for 
effectuating the bar of the remedy, beyond the power of legislation ? Not 
only because of the obligation of the contract implied by law, but even 
more palpably because the right so acquired becomes vested as property, 
and it stands protected by that clause of the Federal Constitution which 
shields the property of every citizen from disturbance except by due 
process of law. By the settled law the lapse of the prescribed time not 
only bars the remedy, but, in the case of property, it vests a perfect 
title to the property, and at once comes under the protection guaranteed 
to the rights of property by the Constitution. 

ic g u t this result follows only from the assumption that the statute of 
limitations has run on unobstructed and unsuspended during the time 
prescribed by law. In the case before us the slaves went into the pos¬ 
session of the donees in December, 1861, and January, 1862. The war 
was prevailing when the gifts were made. The question raised by these 
facts was reserved in the case of Girdner v. Stephens, as the court in 


580 


TENNESSEE CONSTITUTIONAL LAW. 


that case held that it could judicially know that the courts were not 
closed in the locality where the transaction occurred. We have deter¬ 
mined the question at the present term by holding the general proposi¬ 
tion that as the bar operates upon the remedy, if, by the existence of 
civil war the remedy is suspended, by reason of the fact that the courts 
are not open, then and during such time as the courts are so closed the 
statute would be suspended.” Freeman, J., dissented. 52, 362. x Yancy 
v. Yancy. 1871. 


ORDINANCE. 


Section 1 . Be it Ordained by the Convention, That it shall be 
the duty of the several officers of the State authorized by law 
to hold elections for members of the general assembly and other 
officers, to open and hold an election at the place of holding said 
elections in their respective counties, on the fourth Saturday in 
March, 1870, for the purpose of receiving the votes of such qual¬ 
ified voters as may desire to vote for the ratification or rejection 
of the Constitution recommended by this convention, and the 
qualification of voters in said election be the same as that 
required in the election of delegates to this convention. 

Sec. 2. It shall be the duty of said returning officers in 
each county in this State to enroll the name of each voter on 
the poll books prepared for said eleetion, and shall deposit each 
ballot in the ballot boxes respectively. Each voter who wishes 
to ratify the new Constitution shall have written or printed on 
his ticket the words ‘New Constitution,’ or words of like 
import; and each voter who wishes to vote against the ratifica¬ 
tion of the new Constitution shall have written or printed on 
his ticket the words ‘Old Constitution,’ or words of like import. 

Sec. 3. The election shall be held, and the judges and 
clerks shall be appointed as in the case of the election of the 
members of the general assembly; and the returning officers, in 
presence of the judges or inspectors, shall count the votes 
given for the ‘New Constitution,’ and of those given for the 
‘ Old Constitution,’ of which they shall keep a correct estimate 
in said poll books. They shall deposit the original poll books of 
said election with the clerks of the County courts in the respect¬ 
ive counties; and shall, within five days after the election, make 
out accurate statements of the number of votes in their respect¬ 
ive counties for or against the ‘New Constitution,’ and imme¬ 
diately forward by mail one copy of said certificates to the 
governor and one to the speaker of the senate. So soon as the 
poll books are deposited with the County court clerks, they 
shall certify to the president of the convention an accurate 
statement of the number of votes cast for or against the ‘New 
Constitution,’ as appears on said poll books; and if any of the 
said returning officers shall fail to make the returns herein pro¬ 
vided for within the time required, the governor shall be author¬ 
ized to send special messengers for the result of the vote in those 
counties whose officers have so failed to make returns. 

Sec. 4. Upon the receipt of said returns it shall be the 
duty of the governor, speaker of the senate, and the president 
of this convention, or any two of them, to compare the votes 
cast in said election; and if it shall appear that a majority of all 
the votes cast for and against the new Constitution were for 
4 New Constitution,’ it shall be the duty of the governor, speaker 
of the senate, and president of this convention, or any two of 


1 See same case, art. 2, sec. 2, p. 264. 



ORDINANCE 


581 


them, to append to this Constitution a certificate of the result of 
the votes, from which time the-Constitution shall be established 
as the Constitution of Tennessee, and the governor shall make 
proclamation of the result. 

Sec. 5. The governor of the State is required to issue his 
proclamation as to the election on the fourth Saturday in March, 
1870, hereto provided for. 

John C. Brown, President. 
Attest: T. E. S. Russwurm, Secretary. 


The Constitution Took Effect on May 5, 1870. — DEADERICK, J.: “The 
ordinance of the convention prescribing the manner and time at which 
the question of the ratification or rejection of the Constitution should 
be submitted to the vote of the people of the States, as well as the 
qualification of the voters, by its fourth section directs that the gov¬ 
ernor, speaker of the senate, and the president of the convention, or 
any two of them, shall compare the votes, and if it shall appear that a 
majority of the votes was cast for the new Constitution, then they, or 
any two of them, shall append to the new Constitution a certificate of 
the result of the votes, from which time the Constitution shall be estab¬ 
lished, and the governor shall make proclamation of the result. 
Accordingly, the certificate of the result was issued on the 5th of May, 
1870, and the governor did, on that day, ‘ declare and proclaim the result 
of the vote upon the ratification or rejection of the Constitution in pur¬ 
suance of the fourth ordinance/ as the proclamation recites, thus 
attesting that the Constitution was established on the 5th of May, 1870.” 
68, 233. 1 Bilbrey v. Poston. 1874. 


1 See same case. art. 11, sec. 11, p. 658. 



582 


TENNESSEE CONSTITUTIONAL LAW. 


PROCLAMATION. 

State of Tennessee, Executive Department, \ 
Nashville, May 5, 1870. j 

In pursuance of the fourth ordinance of the late consti¬ 
tutional convention, I have carefully examined the official 
returns of the election held on the twenty-sixth day of March 
last, for the ratification or rejection of the proposed Constitution 
of the State of Tennessee (except the counties of Knox, Grainger, 
Roane, and Overton, which returns have not been received), and 
find the number of votes cast for the “New Constitution” to be 
(98,128) ninety-eight thousand one hundred and twenty-eight, 
and for the “Old Constitution” (33,872) thirty-three thousand 
eight hundred and seventy-two, being a majority of (64,256) 
sixty-four thousand two hundred and fifty-six for the New Con¬ 
stitution. 

Now, therefore, I, D. W. C. Senter, governor of the State of 
Tennessee, by virtue of the power and authority in me vested, 
do hereby declare and proclaim that the New Constitution, as 
submitted to the people, was ratified by them at the ballot box, 
on the twenty-sixth day of March last, by said majority of 
(64,256) sixty-four thousand two hundred and fifty-six votes. 

In testimony whereof, I have hereunto subscribed my official 
signature, and ordered the Great Seal of the State to be affixed. 

Done at the department in the city of Nashville, this fifth 
day of May, in the year of our Lord, one thousand eight hun¬ 
dred and seventy, and of the American Independence the 
ninety-fourth. D. W. C. SENTER. 

By the governor: 

A. J. Fletcher, 

Secretary of State. 


MEMBERS OF THE CONVENTION OF 1870. 

JOHN C. BROWN, President. 


John Allen, 

Jesse Arledge, 
Humphrey Bate, 
Jno. Baxter, 

A. Blizzard, 

Nathan Brandon, 
James Britton, 

R. P. Brooks, 

Neill S. Brown, 
James S. Brown, 

T. M. Burkett, 

John W. Burton, 
Wm. Byrne, 

Alex. W. Campbell, 
Wm. Blount Carter, 
Z. R. Chowning, 
James A. Coffin, 
Warren Cummings, 
Robert P. Cypert, 

T. D. Davenport, 

N. V. Deaderick, 

G. G. Dibrell, 

Attest: 


Jos. A. Mabry, 

A. G. McDougal, 
Malcom McNabb, 
Matt. Martin, 
John H. Meeks, 
Thos. C. Morris, 

J. Netherland, 

A. O. P. Nicholson, 
Geo. C. Porter, 

Jas. D. Porter, Jr., 
Geo. E. Seay, 

N. F. Doherty, 

J. E. Dromgoole, 
James Fentress, 

A. T. Fielder, 

P. G. Fulkerson, 
John A. Gardner, 
John E. Garner, 

S. P. Gaut, 

Charles A. Gibbs, 

B. Gordon, 

J. B. Heiskell, 


R. Henderson, 

H. L. W. Hill, 

Sp’l Hill, 

Sam S. House, 

Jno. F. House, 

T. B. Ivie, 

Thomas M. Jones, 
David N. Kennedy, 

D. M. Key, 

Sam J. Kirkpatrick, 
A. A. Kyle, 

Samuel G. Shepard, 

E. H. Shelton, 

Wm. H. Stephens, 
John M. Taylor, 

J. C. Thompson, 

N. Vance Thompson, 
James J. Turner, 

Geo. W. Walker, 
Richard Warner, Jr. 
N. H. Williamson, 

W. M. Wright. 


T. E. S. RUSSWURM, Secretary .„ 

THOS. W. JONES, Assistant Secretary. 
W. S. KYLE, Second Assistant Secretary. 




FIRST TWO CONSTITUTIONS —OBSOLETE PORTIONS. 


583 


MISCELLANEOUS. 

OBSOLETE PORTIONS OF THE FIRST TWO CONSTITUTIONS. 
Schedule to Constitution of 1834. 


Section 1 . That no inconvenience may arise from a change of the Constitution, it i8 
declared that all officers, civil and military, shall continue to hold their offices ; and all functions 
appertaining to the same shall be exercised and performed according to the existing laws and 
Constitution until the end of the first session of the general assembly which shall sit under this 
Constitution, and until the government can be reorganized and put into operation under this 
Constitution in such manner as the first general assembly aforesaid shall prescribe, and no 
longer. 

Sec. 2. The general assembly w’hich shall sit after the first apportionment of representation 
under the new Constitution, to wit, in the year one thousand eight hundred and forty-three, 
shall, within the first week after the commencement of the session, designate and fix the seat of 
government; 1 and when so fixed it shall be removed except by the consent of two-thirds of the 
members of both houses of the general assembly. The first and second sessions of the general 
assembly under this Constitution shall be held at Nashville. See note, p. 499. 


1 Act Declaring Nashville the Seat of Government.— Freeman, J.: “ The legislature did, 
in pursuance of this section, declare as substantially adopted into the Code: * The town of Nash¬ 
ville. in the county of Davidson, is the seat of the State government of this State.’ And now it 
is insisted that if the general assembly met at any other place while Nashville remained the seat 
of government the laws passed by them there are void. We may say first in reference to the fact 
that the law was passed at Memphis, that there is nothing on the face of the law from which we 
can see that it was not passed at Nashville; but assuming, as perhaps we are judicially bound to 
do, that such was the case, then the Question suggested is fairly presented, and we feel bound to 
decide it. The section of the schedule quoted only requires the legislature to designate and fix 
the seat of government, and that when so fixed it shall not be removed except by consent of two- 
thirds of the members of both houses of the general assembly. The fair construction of this 
clause is. that the permanent seat of government shall be fixed ; but it certainly does not follow 
that upon an overriding and controlling emergency the legislature, one branch of the govern¬ 
ment only, may not assemble at another place temporarily, while that emergency lasts, without 
changing'the permanent seat of government. Again, the presumption which must always stand 
till removed by clear evidence to the contrary, would be in favor of the regularity of the action 
of the law-making power in the State ; and we would be bound, perhaps, to assume that the 
change of the place of meeting had been assented to as required by law, and that the seat of gov¬ 
ernment had been changed by a two-thirds vote of both houses of the general assembly as required. 
On looking into the legislative action of the period, however, we find that in contemplation of 
such an emergency as did occur, a joint resolution was passed by both houses of the general 
assembly, on the 10th of February, 1862, authorizing a temporary change of the seat of govern¬ 
ment, and authorizing the governor by proclamation to convene the legislature, when he deemed 
it necessary, at the place determined upon as the temporary seat of government. See ‘Acts of the 
Thirty-fourth General Assembly for 1861 and 1862, pamphlet, p. 82. We might presume, if we did 
not know it judicially, as part of the public and well-known history of the country, that the 
legislature did meet in pursuance of this joint resolution.” 54 . 698. Friersori's Ex'rs. v. Oen’l. 
Assembly Pres. Church. 1872. 


1 M. Si V., 79. 

Sec. 3. Until a land office shall be opened so as to enable the citizens south and west of 
the congressional reservation line to obtain titles upon their claims of occupancy, those who 
hold lands by virtue of such claims shall be eligible to serve in all capacities where a freehold is, 
by the law of the State, made a requisite qualification. 

Done in convention at Nashville, this the thirtieth (30th) day of August, one thousand eight 
hundred and thirty-four, and of the independence of the United States of America the fifty-ninth. 

William B. Carter, President. 

William K. Hill, Secretary. 

[The ordinance following the Schedule to the Constitution of 1834 and providing a method of 
voting on the adoption of that instrument, also making an apportionment of senators and repre¬ 
sentatives is omitted because unimportant.] 




584 


TENNESSEE CONSTITUTIONAL LAW. 


MEMBERS OF THE CONVENTION OF 1834. 


Carter —William B. Carter. 

Washington —Matthew Stephenson. 

Sullivan —Abraham McClellan. 

Greene— Robert J. McKinney. 

Hawkins— John A. McKinney. 

Jefferson, Grainger, Claiborne, Campbell— Callo¬ 
way Hodges, Gray Garrett, Richard Brad¬ 
shaw. 

Cocke, Sevier—William C. Roadman. 

Knox —Joseph A. Mabry. 

Blount —James Gillespie. 

Monroe —Bradley Kimbrough. 

Me Minn —J ohn Neal. 

Roane— James I. Greene. 

Anderson, Morgan —John Whitson. 

Rhea, Hamilton —William T. Senter. 

Bledsoe, Marion —John Kelly. 

Washington, Greene, Sevier, Cocke, Monroe, 
Blount, McMinn —John McGauhey. 

Overton, Fentress —Hugh C. Armstrong. 
Jackson— James W. Smith. 

White— Richard Nelson. 

Warren —Isaac Hill. 

Franklin —George W. Richardson. 

Warren, Franklin —William C. Smart. 

Smith, Sumner —John J. White, Robert Allen, 
Isaac Walton. 


Wilson —Burchett Douglass,Robert M.Burton. 
Rutherford —William Ledbetter, Henry Ridley. 
Bedford —Joseph Kincaid. Jonathan Webster. 
Lincoln, Giles —James Fulton, A. A. Kincan- 
non, Thomas C. Porter. 

Davidson —Francis B. Fogg, Robert Weakley. 
Williamson — Newton Cannon, William G. 
Childress. 

Maury —Terry H. Cahal, Robert L Cobb. 
Robertson— Richard Cheatham. 

Montgomery —Willie Blount. 

Dickson, Stewart, Humphreys —J amen Gray, 
John Montgomery. 

Hickman, Wayne, Lawrence —Bolling Gordon, 
Henry Sharp. 

Henry —Peter Kendall. 

Carroll— Ennis Ury. 

Henderson —John Purdy. 

Hardin, Perry, McNairy —James Scott, McLin 
Cross. 

Madison —Adam Huntsman. 

Hardeman —Julius C. N. Robertson. 

Fayette —West Humphries. 

Shelby —Adam R. Alexander. 

Gibson, Dyer —Nelson I. Hope. 

Weakley, Obion —G. W. L. Marr. 

Haywood, Tipton —William H. Loving. 


SCHEDULE TO CONSTITUTION OF 1796. 


Section 1. That no inconvenience may arise from a change of the temporary to a permanent 
State government, it is declared that all rights, actions, prosecutions, claims, and contracts, as 
well of individuals as of bodies corporate, shall continue as if no change had taken place in the 
administration of government. 

Sec. 2. All fines, penalties, and forfeitures due and owing to the territory of the United States 
of America south of the river Ohio shall inure to the use of the State. All bonds for performance, 
executed to the government of the said territory, shall be and pass over to the governor of this 
State and his successors in office, for the use of the State, or by him or them respectively, to be 
assigned over to the use of those concerned, as the case may be. 

Sec. 3. The governor, secretary, judges, and brigadiers general, have a right, by virtue of their 
appointments under the authority of the United States, to continue in the exercise of the duties 
of their respective offices in their several departments until the said officers are superseded under 
the authority of this Constitution. 

Sec 4. All officers, civil and military, who have been appointed by the governor, shall con¬ 
tinue to exercise their respective offices until the second Monday in June, and until their success¬ 
ors in office shall be appointed under the authority of this Constitution, and duly qualified. 

Sec. 5. The governor shall make use of his private seal until a State seal shall be provided. 

Sec. 6. Until the first enumeration shall be made, as directed in the second section of the first 
article of this Constitution, the several counties shall be respectively entitled to elect one senator 
and two representatives; provided, that no new county shall be entitled to separate representation 
previous to taking the enumeration. 

Sec. 7. That the next election for representatives and other officers to be held for the county 
of Tennessee shall be held at the house of William Miles. 

Sec. 8. Until a land office shall be opened so as to enable the citizens south of French Broad 
and Holston, between the rivers Tennessee and Big Pigeon, to obtain titles upon their claims of 
occupancy and pre-emption, those who hold land by virtue of such claims shall be eligible to 
serve in all capacities w r here a freehold is by this Constitution made a requisite qualification. 1 

Done in convention at Knoxville, by unanimous consent, on the sixth day of February, in the 
year of our Lord one thousand seven hundred and ninety-six, and oi the independence of the 
United States of America the twentieth. 


In testimony whereof, we have hereunto subscribed our names. 

Wiliaam Blount, President. 


William Maclin, Secretary. 


1 See Shields v. Walker, note to art. 1, sec. 31, p. 241. 



FIRST TWO CONSTITUTIONS—OBSOLETE PORTIONS. 


.”>85 


MEMBERS OF THE CONVENTION OF 1796. 


nX!$J£? ^,7 Da T V 1 i 1 c ^ig. James Greenaway, Joseph Black. Samuel Glass, James Houston. 
Lewis * lld8 ° County— John McNairy, Audrew Jackson, James Robertson, Thomas Hardeman, Joel 

Baker^”* County ~ i?amuel Frazier, Stephen Brooks. William Rankin, John Galbreath, Elisha 

MitcheU**** County ~' James Berry, Thomas Henderson, Joseph McMinn, William Cocke, Richard 

ArchlCah? R(?ane <y_ ^Alexander Outlaw, Joseph Anderson, George Doherty, William Roddye, 

Ktwx County— William Blount, James White. Charles McC’lung, John Adair, John Crawford. 
Sullivan County— George Rutledge, William C. C. Claiborne, John Shelby, Jr., John Rhea, 
Richard Gammon. 

Sevier County Peter Bryan, Samuel Wear, Spencer Clark, John Clack, Thomas Buckingham. 
Tennessee Coxinty— Thomas Johnston, James Ford, William Fort, Robert Prince, William Prince. 
Washington County —LandonCarter, John Tipton, Leroy Taylor, JamesStuart, Samuel Handley. 
Sumner County —D. Shelby. Isaac Walton, W. Douglass, Edward Douglass, Daniel Smith. 


SCHEDULE AND RESOLUTIONS 


Adopted by the Mass Meeting of Union Men Which Was Held in 1865, and 
Which Amended the Constitution of 1884. 

For section l, see art. 1. sec. 34, p. 242. 

Sec. 2. “The declaration of independence and ordinance dissolving the federal relations 
between the State of Tennessee and the United States of America," passed and promulgated by 
the legislature of Tennessee on the 6th day of May, 1861, by which tne State was declared sepa¬ 
rated from the Federal Union, and all laws and ordinances by which Tennessee became a mem¬ 
ber of the Federal Union annulled and abrogated, was In like manner an act of treason and 
usurpation, unconstitutional, null and void. 1 


1 See 42 , 1 ; 54 , 697. 

Sec. 3. The convention, agreement and military leagues entered into by the commissioners 
of the so-called Confederate States of America, made May 7,1861, and on the same day ratified and 
-confirmed by the legislature, was an act of treason, usurpation, unconstitutional, null and void. 

For section 4 see section 4 of schedule to Constitution of 1870, p. 576. 

Sec. 5. All laws and ordinances and resolutions, as well as all acts done in pursuance thereof, 
under the authority of the usurped State government after the declared independence of the 
State of Tennessee, on or after the sixth day of May. 1861, were unconstitutional, null and void, 
from the beginning : Provided, That this section shall not be construed as to affect any judicial 
decisions made by the State courts held at times differing from those provided by law prior to 
May 6, 1861; said judicial decisions beiug made pursuant to the laws of the State of Tennessee 
-enacted previous to said date, and between parties present in court and litigating their rights. 1 


1 See 42. 171,609; 43,214; 45,176; 64, 18. 

Sec. 6. All laws, ordinances, and resolutions of the usurped State government, passed on or 
after the sixth day of May, 1861, providing for the issuance of State bonds, also all notes of the 
Bank of Tennessee, or any of its branches, issued on or after the sixth day of May, 1861, and all 
debts created or contracted in the name of the State by said authority, are unconstitutional, null 
and void ; and no legislature shall hereafter have power to pass any act authorizing the payment 
of said bonds or debts, or providing for the redemption of said notes. 1 


1 45 . 247 ; 49 , 481; 64 , 18. 


Sec. 7. All civil and military officers which have been or may hereafter be appointed by the 
acting governor of the State are hereby ratified and affirmed, and thej' shall continue to hold and 
exercise the functions of their respective offices until their successors shall be elected or 
appointed and qualified as by the laws and Constitutions of the State and United States. 1 


1 43 , 565; 45 , 590.429 : 48 , 767. 

Sec. 8. That the proposed amendments to the Constitution and the schedule thereto be sub¬ 
mitted to the people at the ballot box on the twenty-second day of February next, and that upon 
the adoption thereof by the people, an election shall be held on the fourth day of March next, 
for governor and members of the legislature, the latter to be voted for by general ticket, upon 
the basis prescribed in the act apportioning representation in the State, passed on the nineteenth 
day of February, 1852, to assemble at the capitol on the first Monday in April uext, said officers 
to continue in office until their successors shall be elected and qualified under the regular bien¬ 
nial election of 1867 ; Provided, That said apportionment be so modified as to give to the counties 
of Johnson, Carter. Campbell, Anderson, Union, Sevier, Macon, and Hancock, each one member ; 
and the district composed of the counties of Fentress, Morgan. Scott, and Cumberland one addi¬ 
tional member in the house of representatives.* 

For section 9 see art. 4, sec. 1, p. 401. 


1 See 42 , 1 . 







586 


TENNESSEE CONSTITUTIONAL LAW. • 


RESOLUTIONS. 


Resolved, That at the election in February those in favor of the foregoing amendments and 
schedule shall deposit a ballot, on which shall be written “ Ratification,” and those who are 
opposed shall deposit a ballot on which shall be written •* Rejection.” 

Resolved, That when the above amendments to the Constitution of the State of Tennessee shall 
be submitted to the people of the State for their ratification or rejection, and that the first elec¬ 
tion held under said Constitution as amended, if ratified by the people, no person shall be 
permitted to vote unless he first takes the following oath at the polls; and the name of each voter 
shall be written upon the back of his ticket, and it shall be the duty of the judges and clerks of 
said election to preserve said tickets and file them with the clerks of the County courts of their 
respective counties for future reference; Provided, That this oath shall not be required of the cit¬ 
izens who are well known to the judges to have been unconditional Union men ; Provided, also , 
That voters otherwise qualified may vote within any county of the State, and, if in the military 
service, wherever they may be on the day of election ; and that the commanding officer of each 
regiment, battalion, detachment, battery or hospital is empowered to hold such election : 


OATH. 

I solemnly swear that I will henceforth support the Constitution of the United States and 
defend it against the assaults of all enemies; that I am an active friend of the government of the 
United States and the enemy of the so-called Confederate States; that I ardently desire the sup¬ 
pression of the present rebellion against the government of the United States; that I sincerely 
rejoice in the triumph of the armies and navies of the United States and in the defeat and over¬ 
throw of the armies, navies and of all armed combinations in the so-called Confederate States ; 
that I will cordially oppose all armistices or negotiations for peace with rebels and arms until the 
Constitution of the United States, and all laws and proclamations made in pursuance thereof, 
shall be established over all the people of every State and territory embraced within the .National 
Union; and that I will heartily aid and assist the loyal people in whatever measure may be 
adopted for the attainment of those ends; and, further, that I take this oath freely and volun¬ 
tarily and without mental reservation, so help me God ! 

Resolved, That the returns of the election shall be made to the secretary of the State, and the 
result be declared by the proclamation to the acting governor. 

Resolved, That the convention do nominate and offer to the people a candidate for governor, 
and that the delegates from the several senatorial and representative districts be requested to 
nominate and present to the convention candidates for their respective districts to be placed upon 
the general legislative ticket; Provided, If the Union people of any district shall desire to make 
another selection, that they have the opportunity to do so. 

Resolved, That it shall be the duty of the executive committee to fill all vacancies that may 
occur in the list of candidates and officers for holding elections solicited by the convention. 

Resolved, That the names of such as may be selected shall be forwarded to the chairman at 
Nashville on or before the tenth day of February next, when the chairman shall publish the com¬ 
plete list in the papers of the State. 

The names of the very patriotic gentlemen of which this meeting was composed have not, to 
my knowledge, been preserved. May they rest in peace. 


PART SECOND. 


CONTAINING 

THE 

Constitution of the United States, 


OPINIONS 


The Supreme Court of Tennessee 


RELATING THERETO 


AND 


THE DECLARATION OF INDEPENDENCE. 








Constitution of the United States. 


PREAMBLE. 

We, the people of the United States, in order to form a more 
perfect union, establish justice, insure domestic tranquility, 

J )rovide for the common defense, promote the general wel- 
are, and secure the blessings of liberty to ourselves and 
our posterity, do ordain and establish this Constitution for 
the United States of America, 


ARTICLE I. 


OF THE LEGISLATIVE POWER. 

Article 1, Section 1. All legislative powers herein granted 
shall be vested in a congress of the United States, which shall 
consist of a senate and house of representatives. 

Art. 1, Sec. 2. The house of representatives shall be com¬ 
posed of members chosen every second year by the people of the 
several States, and the electors in each State shall have the 
qualifications requisite for electors of the most numerous branch 
of the State legislature. 

No person shall be a representative who shall not have 
attained to the age of twenty-five years, and been seven years 
a citizen of the United States, and who shall not, when elected, 
be an inhabitant of that State in which he shall be chosen. 
Representatives and direct taxes shall be apportioned among 
the several States which may be included within this Union, 
according to their respective numbers, which shall be deter¬ 
mined by adding to the whole number of free persons, includ¬ 
ing those bound to service for a term of years, and excluding 
Indians not taxed, three-fifths of all other persons. 

The actual enumeration shall be made within three years 
after the first meeting of the congress of the United States, and 
within every subsequent term of ten years, in such manner as 
they shall by law direct. The number of representatives shall 
not exceed one for every thirty thousand, but each State shall 
have at least one representative; and until such enumeration 
shall be made, the State of New Hampshire shall be entitled to 
choose three, Massachusetts eight, Rhode Island and Providence 
Plantations one, Connecticut five, New York six, New r Jersey 
four, Pennsylvania eight, Delaware one, Maryland six, Virginia 
ten, North” Carolina five, South Carolina five, and Georgia 
three. 

When vacancies happen in the representation from any 
State, the executive authority thereof shall issue writs of elec¬ 
tion to fill such vacancies. 

The house of representatives shall choose their speaker and 
other officers, and shall have the sole power of impeachment. 

Art. 1, Sec. 3. The senate of the United States shall be com¬ 
posed of two senators from each State, chosen by the legislature 
thereof for six years, and each senator shall have one vote. 



590 


CONSTITUTION OF THE UNITED STATES. 


Immediately after they shall be assembled in consequence 
of the first election, they shall be divided as equally as may be 
into three classes. The seats of the senators of the first class 
shall be vacated at the expiration of the second year, of the 
second class at the expiration of the fourth year, and of the 
third class at the expiration of the sixth year, so that one-third 
may be chosen every second year; and if vacancies happen by 
resignation or otherwise during the recess of the legislature of 
any State, the executive thereof may make temporary appoint¬ 
ments until the next meeting of the legislature, which shall then 
fill such vacancies. No person shall be a senator who shall not 
have attained to the age of thirty years, and been nine years a 
citizen of the United States, and who shall not, when elected, 
be an inhabitant of that State for which he shall be chosen. 

The vice president of the United States shall be president 
of the senate, but shall have no vote, unless they be equally 
divided. 

The senate shall choose their other officers, and also a presi¬ 
dent pro tempore , in the absence of the vice president, or when 
he shall exercise the office of president of the United States. 

The senate shall have the sole power to try all impeach¬ 
ments. When sitting for that purpose, they shall be on oath or 
affirmation. When the president of the United States is tried, 
the chief justice shall preside; and no person shall be convicted 
without the concurrence of two-thirds of the members present. 

Judgment in cases of impeachment shall not extend further 
than to removal from office and disqualification to hold and 
enjoy any office of honor, trust or profit under the United 
States; but the party convicted shall nevertheless be liable and 
subject to indictment, trial, judgment, and punishment, accord¬ 
ing to law. 

Art. 1, Sec. 4. The times, places and manner of holding elec¬ 
tions for senators and representatives shall be prescribed in each 
State by the legislature thereof; but the congress may at any time 
by law "make or alter such regulations, except as to the places of 
choosing senators. The congress shall assemble at least once in 
every year, and such meeting shall be on the first Monday in 
December, unless they shall by law appoint a different day. 

Art. 1, Sec. 5. Each house shall be the judge of the elections, 
returns and qualifications of its own members, and a majority 
of each shall constitute a quorum to do business; but a smaller 
number may adjourn from day to day, and may be authorized to 
compel the attendance of absent members, in such manner and 
under such penalties as each house may provide. 

Each house may determine the rule of its proceedings, and 
punish its members for disorderly behavior, and with the con¬ 
currence of two-thirds, expel a member. 

Each house shall keep a journal of its proceedings, and from 
time to time publish the same, excepting such parts as may in 
their judgment require secrecy; and the yeas and nays of the 
members of either house on any question shall, at the desire of 
one-fifth of those present, be entered on the journal. 

Neither house, during the session of congress, shall, with¬ 
out the consent of the other, adjourn for more than three days, 
nor to any other place than that in which the two houses shall 
be sitting. 

Art. 1, Sec. 6. The senators and representatives shall receive 
a compensation for their services, to be ascertained by law, and 
paid out of the treasury of the United States. They shall in all 
cases, except treason, felony and breach of the peace, be privi¬ 
leged from arrest during their attendance at the session of their 
respective houses, and in going to and returning from the same; 
and for any speech or debate in either house, they shall not be 
questioned in any other place. 


CONSTITUTION OF THE UNITED STATES. 


591 


No senator or representative shall, during the time for 
which he was elected, be appointed to any civil office under the 
authority of the United States, which shall have been created 
or the emoluments whereof shall have been increased during 
such time; and no person holding any office under the United 
States shall be a member of either house during his continuance 
in office. 

Art. 1, Sec. 7. All bills for raising revenue shall originate 
in the house of representatives; but the senate may propose or 
concur with amendments as on other bills. 

Every bill which shall have passed the house of represent¬ 
atives and the senate shall, before it becomes a law, be presented 
to the president of the United States. If he approve he shall 
sign it, but if not, he shall return it, with his objections, to that 
house in which it shall have originated, who shall enter the 
objections at large on their journal, and proceed to reconsider 
it. If, after such reconsideration, two-thirds of that house 
agree to pass the bill, it shall be sent, together with the objec¬ 
tions to the other house, by which it shall likewise be consid¬ 
ered; and if approved by two-thirds of that house, it shall 
become a law. But in all such cases the votes of both houses 
shall be determined by yeas and nays, and the names of the 
persons voting for and against the bill shall be entered on the 
journals of each house respectively. If any bill shall not be 
returned by the president within ten days (Sundays excepted) 
after it shall have been presented to him, the same shall be a 
law, in like manner as if he had signed it, unless the congress, 
by their adjournment, prevent its return, in which case it shall 
not be a law. 

Every order, resolution, or vote, to which the concurrence 
of the senate and house of representatives may be necessary 
(except on the question of adjournment), shall be presented to 
the president of the United States, and before the same shall 
take effect shall be approved by him, or, being disapproved by 
him, shall be passed by two-thirds of the senate and house of 
representatives, according to the rules and limitations pre¬ 
scribed in the case of a bill. 

POWERS OF CONGRESS. 

Art. 1, Sec. 8 . The congress shall have power— 

To lay and collect taxes, duties, imposts, and excises; to pay the 
debts and provide for the common defense and general wel¬ 
fare of the United States; but all duties, imposts, and excises 
shall be uniform throughout the United States; 

To borrow money on the credit of the United States; 

To regulate commerce with foreign nations, and among the sev¬ 
eral States, and among the Indian tribes; 

See page 381. 

To establish an uniform rule of naturalization, and uniform 
laws on the subject of bankruptcies, throughout the United 
States; 

To coin money, regulate the value thereof, and of foreign coin, 
and to fix the standard of weights and measures; 

To provide for the punishment of counterfeiting the securities 
and current coin of the United States; 

To establish postoffices and postroads; 

To promote the progress of science and useful arts, by securing 
for limited times to authors and inventors the exclusive 
right to their respective writings and discoveries; 

To constitute tribunals inferior to the Supreme court; 


592 


CONSTITUTION OF THE UNITED STATES. 


To define and punish piracies and felonies committed on the 
high seas, and offenses against the law of nations; 

To declare war; grant letters of marque and reprisal, and make 
rules concerning captures on land and water; 

To raise and support armies; but no appropriation of money to 
that use shall be for a longer term than two years; 

To provide and maintain a navy; 

To make rules for the government and regulation of the land 
and naval forces; 

To provide for calling forth the militia to execute the laws of the 
Union, suppress insurrections, and repel invasions; 

To provide for organizing, arming, and disciplining the militia, 
and for governing such part of them as may be employed in 
the service of the United States, reserving to the States 
respectively the appointment of the officers and the author¬ 
ity of training the militia according to the discipline pre¬ 
scribed by congress; 

To exercise exclusive legislation, in all cases whatsoever, over 
such district (not exceeding ten miles square) as may, by 
cession of particular States, and the acceptance of congress, 
become the seat of the government of the United States, 
and to exercise like authority over all places purchased by 
the consent of the legislature of the State in which the same 
shall be, for the erection of forts, magazines, arsenals, dock¬ 
yards, and other needful buildings; and 

To make all laws which shall be necessary and proper for carry¬ 
ing into execution the foregoing powers, and all other 
powers vested by this Constitution in the government of the 
United States, or in any department or officer thereof. 

Patent Rights — Federal Action Conclusive.— FREEMAN, J., heldr 
“The Constitution of the United States having conferred upon .the Fed¬ 
eral government the right to grant to inventors the exclusive right for 
a limited time to their discoveries, a patent is conclusive of its own 
validity, and a State court can not go behind it.” 58. 87. Cowan 
Mitchell. 1872. 

Patent Right — Sale of—Not Subject to License Tax. — FREEMAN, J. t 
“The only question in the case is the right of the State to impose a 
license or privilege tax on a sale of such right. Congress, under the 
Constitution of the United States, by art. 1, sec. 8, has conferred on it 
the power ‘to promote the progress of science and the useful arts by 
securing to authors and inventors the exclusive right to their respective 
writings and discoveries/ This power has been exercised by the enact¬ 
ment of the laws under which this patent was granted. To use the 
language of Judge Swayne in the case of Wooten v. Barker, 5 Reporter,. 
260, ‘congress has not only fixed the manner in which a patent may be 
obtained, but has prescribed the manner in which it may be sold, and 
has imposed penalties for the infringement thereof. The national gov¬ 
ernment has, therefore, made the patent right property. The patentee 
has paid the government for the monopoly, and it is bound to protect 
him and his assignee in the use and enjoyment of it. Any interference 
whatever by the State that will impair the right to make, use, or vend 


CONSTITUTION OF THE UNITED STATES. 


593 


any patent, or the right to assign the patent, or any part of it, is for¬ 
bidden by the highest organic law.’ 

“If this principle be correct, and we see no cause to doubt it, in the 
case of sale of a right to make or manufacture the patented article, 
then it seems clear the statute of the State requiring a license in order 
to the sale of the patent, must be held void, and in violation of the 
Constitution of the United States and laws made in pursuance thereof. 
If the State can forbid the use and enjoyment of the right granted, 
except on terms of payiug for the privilege the sum of ten dollars, she 
may as well exact ten hundred, or forbid it entirely. In this way the 
privilege granted may be rendered valueless, and the right purchased 
from the United States be entirely destroyed for all practical purposes. 
We hold this can not be done, and the right of the patentee to sell or 
assign his privilege granted to him by the United States for the period 
fixed in his letters patent is beyond State control or regulation.” 71, 
223. The State et al. v. Butler. 1879. 

Privilege Tax on Steamboat Agents and Others.— FREEMAN, J., held: 
“The Act of the legislature of 1876, ch. 84, providing means for the local 
government of the 1 taxing district/ which provides in sec. 7, sub-sec. 36, 

1 that steamboat agents and the agents of railroad companies, other than 
the proper officers of railroads terminating at the taxing district, shall 
pay a privilege tax of $25 per annum/ is not a regulation of commerce 
between the States, and is not therefore in violation of the Constitution 
of the United States.” 72, 219. Lighthurne et al. v. Taxing District. 
1880. 

Interstate Commerce—Privilege Tax on Sample-Sellers. — LURTON, J., 

held: “The Revenue Act (1891), ch. 25 (ex. session), imposing privilege 
tax on persons selling goods to consumers by sample, and declaring it a 
misdemeanor to do so without payment of this tax, is invalid as an 
unlawful regulation of interstate commerce in so far as it shall be 
applied to persons not residents of this State, who, as agents or drum¬ 
mers, take orders in this State from consumers for the sale of the goods 
of their non-resident principal situated outside the State—the orders to 
be sent to such non-resident seller and the goods forwarded by him, in 
compliance with their terms, to the buyer.” 91. Hurford v. The State. 
1892. 

See, also, 44, 147; 50, 147; 59, 67. 

Art. 1, Sec. 9. The migration or importation of such persons 
as any of the States now existing shall think proper to admit shall 
not be prohibited by the congress prior to the year one thousand 
eight hundred and eight; but a tax or duty may be imposed on 
such importation not exceeding ten dollars for each person. 

The privilege of the writ of habeas corpus shall not be sus¬ 
pended unless when, in cases of rebellion or invasion, the public 
safety may require it. 


38 


594 


CONSTITUTION OF THE UNITED STATES. 


No bill of attainder or ex post facto law shall be passed. 

No capitation or other direct tax shall be laid, unless in pro¬ 
portion to the census or enumeration hereinafter directed to be 
taken. 

No tax or duty shall be laid on articles exported from any 
State. No preference shall be given by any regulation of com¬ 
merce or revenue to the ports of one State over those of another; 
nor shall vessels bound to or from one State be obliged to enter, 
clear, or pay duties in another. 

No money shall be drawn from the treasury but in conse¬ 
quence of appropriations made by law, and a regular statement 
and account of the receipts and expenditures of all public money 
shall be published from time to time. 

No title of nobility shall be granted by the United States, 
and no person holding any office of profit or trust under them 
shall, without the consent of the congress, accept of any present, 
emolument, office, or title of any kind whatever, from any king, 
prince or foreign State. 


PROHIBITIONS OF STATE POWERS. 

Art. 1, Sec. 10. No State shall enter into any treaty, alliance, 
or confederation; grant letters of marque or reprisal; coin money; 
emit bills of credit; make anything but gold and silver coin a 
tender in payment of debts; pass any bill of attainder, ex post 
facto law, or law impairing the obligation of contracts, or grant 
.any title of nobility. 

See pages 124, 169, 184, 187, 193, 381, 555, 578, 579. 

No State shall, without the consent of the congress, lay any 
imposts or duties on imports or exports, except what may be 
absolutely necessary for executing its inspection laws; and the 
net produce of all duties and imposts laid by any State on imports 
or exports shall be for the use of the treasury of the United 
States; and all such laws shall be subject to the revision and 
control of the congress. 

No State shall, without the consent of the congress, lay any 
duty of tonnage, keep troops or ships of war in time of peace, 
enter into any agreement or contract with another State, or with 
a foreign power, or engage in war, unless actually invaded or 
in such imminent danger as will not admit of delay. 


Redemption—Tender of Money to Redeem Must Be in Gold and Sil¬ 
ver.— Green, J., held: “The purchaser is the legal owner of the land 
sold under execution, subject to the equitable right of the debtor to 
repurchase it upon the terms specified in the act, and the condition 
must be strictly performed by the day; and, as, by the Constitution of 
the United States nothing but gold and silver coin is a legal tender, a 
tender in bank notes of the bank of the United States, if objected to 
for that reason, although equal to coin, will not be good/’ 16, 242. 
Lowry v. McGhee et al. 1835. 

Bills of Credit on Faith of Railroad Corporation Only. — “The W. & A. 
Railroad Company, a corporation created by an act of the legislature of 
Georgia, and of which Georgia was the exclusive proprietor, was author¬ 
ized to emit change bills to the amount of $200,000, redeemable in 


CONSTITUTION OF THE UNITED STATES. 


595 


current bank notes when presented in sums of $5 and upwards; and 
for the redemption of these bills the W. & A. Railroad, its fixtures, 
property and revenues, together with the faith of the State, were pledged, 
and said bills were receivable in payment of taxes and all other dues 
of the State and of the W. & A. Railroad Company.” Turney, J., held: 
“The change bills having been emitted on a pledge of the W. & A. Rail¬ 
road, its fixtures, property and revenues for their redemption, and not 
exclusively on the faith of the State of Georgia, are not bills of credit 
within the meaning of the Constitution of the United States.” 53, 408. 
W. & A. B. R. Co. v. Taylor. 1871. 

See also 16, 243 ; 43,157. 

Bill of Credit Defined. — Sneed, J.: “The special characteristic of a 
bill of credit issued by a State, as defined by the Supreme court of the 
United States, is, that it is a bill drawn and resting merely on the credit 
of the State, as contradistinguished from a fund constituted or pledged 
for the payment of the bill. Briscoe v. Bank of Kentucky, 11 Pet., 314. 
It must be intended to circulate as money. But it must issue solely 
upon the credit of the State, and upon the faith and credit of no specific 
fund constituted for its redemption. Darrington v. State of Alabama, 
13 How., 16; Craig v. State of Missouri, 4 Pet., 431, et seq. The cur¬ 
rency in question, then, is not based on the general credit of the State 
of Mississippi, but a particular fund has been set apart specially for its 
payment, and this distinguishes it from the bills of credit which lie 
under the ban of the organic law.” 63, 62. Gowen v. Shute. 1874. 


ARTICLE II. 


OF THE EXECUTIVE. 


Article 2, Section 1. The executive power shall be vested 
in a president of the United States of America. He shall hold 
his Office during the term of four years, and together with the 
vice president, chosen for the same time, be elected as follows: 

Each State shall appoint, in such manner as the legislature 
thereof may direct, a number of electors equal to the whole 
number of senators and representatives to which the State may 
be entitled in the congress; but no senator or representative, or 
person holding an office of trust or profit under the United 
States, shall be appointed an elector. * 1 


1 This olause is modified by the 12th amendment. 

1 r The electors shall meet in their respective 8tates, and vote by ballot 
for two persons, of whom one at least shall not be an inhabitant of the same 
State with themselves. And they shall make a list of all the persons voted 
for, and of the number of votes for each; which list they shall sign and cer¬ 
tify, and transmit, sealed, to the seat of the government of_ the' United SItotes, 
directed to the president of the senate. The president of the senate shall, in 
the presence of the senate and the house of represen tatives.openallthe^cer- 
tificates, and the votes shall then be counted. The person ha\ ing the great¬ 
est number of votes shall be the president, if such number be a majority of 
the whole number of electors appointed ; and if there be more than one who 
have*such ^najority and have an equal number of. votes, then the house oi 



596 


CONSTITUTION OF THE UNITED STATES. 


The congress may determine the time of choosing the elec¬ 
tors, and the day on which they shall give their votes, which day 
shall be the same throughout the United States. 

No person except a natural-born citizen, or a citizen of the 
United States at the time of the adoption of this Constitution, 
shall be eligible to the office of president; neither shall any 
person be eligible to that office who shall not have attained to 
the age of thirty-five years, and been fourteen years a resident 
within the United States. 

In case of the removal of the president from office, or of 
his death, resignation, or inability to discharge the powers and 
duties of the said office, the same shall devolve on the vice pres¬ 
ident, and the congress may by law provide for the case of 
removal, death, resignation or inability both of the president 
and vice president, declaring what officer shall then act as pres¬ 
ident; and such officer shall act accordingly until the disability 
be removed or a president shall be elected. The president shall, 
at stated times, receive for his services a compensation, which 
shall neither be increased nor diminished during the period for 
which he shall have been elected, and he shall not receive 
within that period any other emolument from the United States, 
or any of them. 

Before he enter on the execution of his office, he shall take 
the following oath or affirmation: 

I do solemnly swear (or affirm) that I will faithfully execute the office 
of president of the United States, and will to the best of my ability, pre¬ 
serve, protect, and defend the Constitution of the United States. 


APPOINTMENTS BY THE PRESIDENT. 

Art. 2, Sec. 2. The president shall be commander-in-chief of 
the army and navy of the United States, and of the militia of the 
several States when called into the actual service of the United 
States ; he may require the opinion, in writing, of the principal 
officers in each of the executive departments, upon any subject 
relating to the duties of their respective offices, and he shall 
have power to grant reprieves and pardons for offenses against 
the United States, except in cases of impeachment. He shall 
have power, by and with the advice and consent of the senate, 
to make treaties, provided two-thirds of the senators present 
concur; and he shall nominate, and by and with the advice and 
consent of the senate shall appoint, ambassadors, other public 
ministers and consuls, judges of the Supreme court, and all 
other officers of the United States whose appointments are not 
herein otherwise provided for, and which shall be established 
by law; but the congress may by law vest the appointment of 
such inferior officers as they think proper in the president alone, 
in the courts of law, or in the heads of departments. 

The president shall have power to fill up all vacancies that 
may happen during the recess of the senate, by granting com¬ 
missions, which shall expire at the end of their next session. 

Extension of Criminal Law Over Cherokee Nation. — CATRON, J., and 
Green, J., held: “The Act of 1833, 16, extending the criminal laws of 


representatives shall immediately choose, by ballot, one of them for presi- 
ident; and if no person have a majority, then from the five highest on the list 
the said house shall, in like manner, choose the president. But in choosing 
the president the votes shall be taken by States, the representation from each 
State having one vote ; a quorum for this purpose shall consist of a member 
or members from two-thirds of the States, and a majority of all the States 
shall be necessary to a choice. In every case, after the choice of the presi¬ 
dent, the person having the greatest number of votes of the electors shall be 
the vice president. But if there should remain two or more who have equal 
votes, the senate shall choose from them, by ballot, the vice president »] 



CONSTITUTION OF THE UNITED STATES 


597 


the State so as to give jurisdiction to the courts of the State over the 
crimes of murder, rape, or larceny committed within the Indian Terri¬ 
tory by any Cherokee Indiau residing therein, is constitutional.” Peck, J., 
dissented. 16, 257. 1 The State v. Foreman. 1835. 


Art. 2, Sec. 3. He shall from time to time give to the congress 
information of the state of the Union, and recommend to their 
consideration such measures as he shall judge necessary and 
expedient; he may, on extraordinary occasions, convene both 
houses, or either of them, and, in case of disagreement between 
them with respect to the time of adjournment, he may adjourn 
them to such time as he shall think proper; he shall receive 
ambassadors and other public ministers; he shall take care that 
the laws be faithfully executed, and shall commission all the 
officers of the United States. 

Sec. 4. The president, vice president, and all civil officers 
of the United States, shall be removed from office on impeach¬ 
ment for and conviction of treason, bribery, or other high crimes 
and misdemeanors. 

See page 403. 


ARTICLE III. 

OF THE JUDICIARY. 


Article 3, Section 1. The judicial power of the United States 
shall be vested in one Suprem court, and iu such inferior courts 
as the congress may from time to time ordain and establish. The 
judges, both of the Supreme and inferior courts, shall hold their 
offices during good behavior, and shall, at stated times, receive 
for their services a compensation, which shall not be diminished 
during their continuance in office. 


EXTENT OF FEDERAL JUDICIAL POWER. 


Art. 3, Sec. 2. The judicial power shall extend to all cases in 
law and equity arising under this Constitution, the laws of the 
United States, and treaties made, or which shall be made, under 
their authority; to all cases affecting ambassadors, other public 
ministers and consuls; to all cases of admiralty and maritime 
jurisdiction; to controversies to which the United States shall 
be a partv; to controversies between two or more States; between 
a State and citizens of another State; between citizens of dif¬ 
ferent States; between citizens of the same State claiming lands 
under grants of different States; and between a State or the 
citizens thereof and foreign States, citizens, or subjects. 

See page 85. 

In all cases affecting ambassadors, other public ministers and 
consuls, and those in which a State shall be a party, the Supreme 
court shall have original jurisdiction. In all the other cases 
before mentioned the Supreme court shall have appellate juris¬ 
diction, both as to law and fact, with such exceptions and under 
such regulations as the congress shall make. 


i note ok Cooper, Editor.— “ The decision in this case was made by two judges against one, 
each of the judges constituting the majority assigning different reasons for his fa lt J- TJjJ * *2“?®; 
wavs Mr Meigs, Dig., sec. 450, ‘ may be read with profit by any one ^ho desires to acquaint him- 

*eff with the history and progress of legislation in reference to the Indian tribes, the former 
masters of the country.’ ” 



598 


CONSTITUTION OF THE UNITED STATES. 


The trial of all crimes, except in cases of impeachment, shall 
be by jury; and such trial shall be held in the State where the 
said crime shall have been committed; but when not committed 
within any State, the trial shall be at such place or places as 
the congress may by law have directed. 

Jurisdiction of State and Federal Courts. — ROANE, J., held: “The 
State judiciary can not assume, nor can the United States coerce it, to 
exercise any judicial powers but those sanctioned by the laws and Con¬ 
stitution of the State. But if congress vest the jurisdiction of viola¬ 
tions of their laws in the State courts, and this jurisdiction is within 
the Constitution and laws of the State, the defendant can not object 
the want of jurisdiction. Thus, a judgment in the Circuit court for a 
penalty incurred by selling liquor without license, under the act of 
congress of 1813, 38, 2, is valid; for the State courts have jurisdiction, 
not merely by the act itself, but by our Constitution and laws, which give 
the Circuit court jurisdiction of all pleas personal, of which character 
is a forfeiture under the act.” (Contra, United States v. Lathrop, 17 
Johns., 4, 261. Platt, J., dissenting, on the same act of congress.) 4, 
145. Hartley v. United States. 1816. 

Act of Congress Taxing Suits in State Courts.— HAWKINS, J., held: 
“The act of congress, passed the thirtieth of June, 1864, provided that 
4 on and after the first day of August, 1864, there shall be levied and 
paid upon each writ, or other original process by which any suit is com¬ 
menced in any court of record, either in law or in equity, the sum of 
fifty cents.’ Held, that the courts of the State do not exist by the 
authority of the United States, or by its permission, and are not objects 
over which its sovereign power extends, except, perhaps, for the pur¬ 
pose of protection. It does not possess over them even the incidental 
power of taxation. The act is, therefore, invalid, and not binding upon 
the courts of this State.” 43, 325. Union Bank v. Hill et al. 1866. 

Suits Between Citizens of Different States — Comity of States.— 
McFarland, J., held: “A bill may be filed in the courts of this State by 
creditors, who are also heirs, living in Georgia, against the executor or 
administrator of the estate uuder which they claim, ‘for an account of 
the funds, etc., and upon the exhaustion of the personalty that the lands 
be sold to satisfy their recovery, etc.’ And this may be done notwith¬ 
standing enough property unencumbered and subject to complainants* 
demand, though they have not exhausted such remedy first, belonging 
to the estate is located in their own State. That the property in this 
State was disposed of by will, and the testator died intestate as to that 
in Georgia, will not change the result.” 67, 366. Bird v. Key. 1875. 


CONSTITUTION OF THE UNITED STATES. 


599 


Art. 3, Sec. 3. Treason against the United States shall consist 
only in levying war against them, or in adhering to their enemies, 
giving them aid and comfort. No person shall be convicted of 
treason unless on the testimony of two witnesses to the same 
overt act, or on confession in open court. 

Ihe congress shall have power to declare the punishment of 
treason, but no attainder of treason shall work corruption of 
blood, or forfeiture, except during the life of the person 
attainted. 


ARTICLE IV. 

RECORDS AND JUDICIAL PROCEEDINGS. 

MISCELLANEOUS PROVISIONS. 

Article 4, Section 1 . Full faith and credit shall be given in 
each State to the public acts, record^, and judicial proceedings 
of every other State. And the congress may, by general laws, 
prescribe the manner in which such acts, records, and proceedings 
shall be proved, and the effect thereof. 

Record of Judgment in Another State.— WHITE, J.: “I doubt whether 
the CoDStitution ever intended to vest congress with a power to deter¬ 
mine what effect the judgment should have in the State to which it is 
sent. It seems to me probable it intended that congress should have 
the power to point out the effect of the authentication which they 
might prescribe; because, in the preceding sentence it is said, ‘full 
faith and credit shall be given to the public acts, records and judicial 
proceedings of other States—congress may prescribe the mode of proof 
and the effect thereof.* If congress have the power of declariug the 
effect of the judgment, why not the power of declaring the effect of a 
legislative act! Would not this have been a most dangerous power to 
vest in congress? I can hardly believe that the framers of the Consti¬ 
tution intended to vest it. But there would be much reason to vest 
cougress with a power of prescribing the mode of authenticating these 
documents and declaring the effect of the authentication when made. 
The mode would then be uniform throughout the States, and the courts 
of each would be compelled to receive the record as evidence that such 
a judgment was in fact rendered; and still, upon general principles, the 
defendant be left at liberty to inquire into the subject-matter of that 
judgment, and, if he could satisfy the court that no such judgment 
ought to have been given, the court could refuse with propriety to give 
it any effect to the prejudice of the defendant.” 3, 429. Winchester v. 
Evans. 1813. 

Suit Brought Upon Record of Judgment From Virginia—Conflict of 
Laws—Limitations—Ex Post Facto Laws—Law of the Forum. — REESE, 
J.: “An action of debt upon the record 1 of a judgment obtained in Vir- 


1 See Code 1858, 2783: T. & 8., 27vS3; M. & V., 3480. 



600 


CONSTITUTION OF THE UNITED STATES. 


ginia was brought by the defendants in error against the plaintiff. The 
latter, among other thiugs, pleaded a statute of Virginia, which limits 
the right to bring an action of debt or scire facias upon a judgment to 
the term of ten years after its registration. To this plea a demurrer 
was filed, which the Circuit court sustained ; and whether the Circuit 
court in that respect erred is the question before us. The counsel for 
the plea admits that in general, in cases of contract, defenses arising 
from matters ex post facto are governed by the law of the forum. And 
with regard to statutes of limitations especially there can be no doubt, 
aud it has not been here controverted but that they are strictly questions 
affecting the remedy, and not questions upon the merits. And in such 
cases, it is said by an eminent jurist to have become a formulary in 
international jurisprudence that all suits must be brought within the 
period prescribed by the local law, otherwise the suit will be barred. 
Story’s Conflict of Laws, sec. 577. 

“But it is insisted that this suit, having been founded upon a judg¬ 
ment rendered in one of the States of this Union, is subject under the 
Constitution and laws of the United States to the same defenses arising 
upon matters ex post facto and affecting the remedy merely to which it 
would have been subject if brought in the State where the judgment 
was rendered. The first section of the fourth article of our Federal 
Constitution provides that Hull faith and credit shall be given, in each 
State, to the public acts, records and judicial proceedings of every other 
State. And the congress may, by general laws, prescribe the manner in 
which such acts, records and judicial proceedings shall be proved, 
and the effect thereof;’ aud, accordingly, cougress prescribed the man¬ 
ner of proof and provided that records and judicial proceedings shall 
have such faith and credit given to them, in every court within the 
United States, as they have by law or usage in the courts of the State 
from which the said records are or shall be taken. And here at once it 
may be asked, if when, in a suit brought upon this Virginia judgment, 
we give conclusive effect to the record by again rendering judgment 
thereon, it can be pretended that we have withheld faith or credit from 
a record or judicial proceeding of that State because we refuse to apply 
an ex post facto defense, affecting not the validity or conclusiveness of 
the judgment, but. the remedy merely, but which would have been 
enforced if the suit had been brought in Virginia? The very statement 
shows that here is no defect in faith and credit, or conclusiveness of 
effect, as to the record from Virginia; but the real complaint would be 
that our own lex fori , as to the remedy, should not cease to operate in 
favor of the local remedy of Virginia. If this could be done, it would 
follow, as a consequence, that the local remedy prescribed by the Vir¬ 
ginia statute would, in that State, cease to operate whenever a suit 
might be brought there upon a judgment to recover in any other State 


CONSTITUTION OF THE UNITED STATES. 


601 


—a consequeuce without and beyond the scope of the words or inten¬ 
tion of the Constitution and act of congress; a consequence injuriously 
affecting the power of the States, each for itself, to impose statutes on 
all for repose, and founded upon a policy alike salutary and enlightened. 

“But it is said that, in the case of Hampton v. McConnell, 3 Wheaton, 
234, and the case of Miles v. Duryee, 7 Cranch, 481, the Supreme court 
ol the United States determined that whatever pleas would be good to 
a suit brought upon a judgment in the State where it was originally 
rendered, and none others can be pleaded in any other court of the 
United States. But a reference to those cases will prove that this gen¬ 
eral language relates to pleas affecting the validity and conclusive effect 
ot a judgment, qua judgment. But in the cases themselves, or in the 
words of the court, there was nothing relative to the question of an ex 
post facto defense or plea affecting the remedy only, the judgment itself 
being taken as valid and conclusive. Upon the whole, we think the 
judgment of the Circuit court is correct, and must be affirmed.” 19, 42. 
Estes v. Kyle. 1838. 

Judicial Record From Other States — Lis Pendens. — CARUTHERS, J., 
held: “The clause of the Federal Constitution which requires that ‘full 
faith and credit shall be giveu in each State to the public acts, records, 
and judicial proceedings of every other State/ does not mean that all 
the effects and consequences of a litigation in one State shall follow the 
subject-matter thereof into another. It has no reference to the doctrine 
of lis pendens , nor is there any recognized comity between the States of 
this Union which would authorize such an interpretation.” 36, 673. 
Shelton v. Johnson. 1857. 

Records and Judicial Proceedings From Other States.— DEADERICK, 
J. : “The Constitution of the United States declares: ‘Full faith and 
oredit shall be given in each State to the public acts, records, and judi- 
oial proceedings of every other State. And the congress may by general 
laws prescribe the manner in which such acts, records, and proceedings 
shall be proved, and the effect thereof. 7 Art. 4, sec. 1. Pursuant to 
this authority, congress enacted: ‘That the said records and judicial 
proceedings, authenticated as aforesaid, shall have such faith and credit 
giveu to them in any court within the United States, as they have by 
law or usage in the courts of the State from whence the said records 
are or shall be taken. 7 Act of twenty-sixth of May, 1790. If, there¬ 
fore, the judgment in this case is a valid judgment, which the court in 
Mississippi had jurisdiction to pronounce, it is equally valid and binding 
here. . . . When a judgment from another State is sought to be 

-enforced in the courts of this State, it is competent for our tribunals, 
upon a plea of nul tiel record, to determine whether the court rendering 
the judgment sought to be enforced had jurisdiction of the person 


602 


CONSTITUTION OF THE UNITED STATES. 


against whom the judgment was rendered, and of the subject-matter of 
this suit.” 59, 301. Barrett v. Oppenheimer. 1873. 

Judgment in Another State. —FREEMAN, J.: “ By art. 4, sec. 1, of the* 
Constitution of the United States it is provided that full faith and credit 
shall be given in each State to the public records and judicial proceed¬ 
ings of every other State, and Congress may, by general laws, prescribe* 
the manner in which such acts, records, and proceedings shall be proved,, 
and the effect thereof. By the act of congress, in pursuance of the 
above clause of the Constitution, it is provided, after giving the forms as 
to authentication, etc., ‘and said record or judicial proceedings shall 
have the same faith and credit given them in any court of the United 
States as they have by law or usage in the courts of the State whence 
the said records are or shall be taken.’ Under these provisions it is 
settled that if the court rendering the judgment had jurisdiction of the 
person and subject-matter, and the judgment was valid in such State,, 
then it was valid in this State. See 5 Yer., 83; Estes v. Kyle; 2 Am. L. 
Cases, last ed., 617-8, aud authorities. The apparent exception to this 
principle is that if no service of process was. had, and judgment taken 
against a citizen of another State, in pursuance of a regulation or 
law of the State, it would not have this conclusive effect, as the Stato 
could not bind by the laws citizens of other States. See Brown 
Brown & McCulloch, 2 Sneed, 435. But while all this may be true,, 
it is, we think, a sound principle, as held by this court in Coffer 
Neely, 2 Heis., 304. Such judgments may be impeached for fraud on 
the part of the party obtaining them, but this must be done on the same 
grounds as would be required to enjoin a judgment of one of our owa 
courts.” 65, 381. Turley v. Taylor. 1873. 

Judgment of Probate Court of Another State. — CALDWELL, J., held: 
“Judgment of Probate court of another State confirming settlement of 
executors’ accounts and discharging them, or declaring aggregate balance 
in their hands, and ordering in general terms its distribution according 
to the testator’s will and the law of the case, is a judicial proceeding 
entitled to full faith and credit aud conclusive upon all the parties when 
brought in question in any of the courts of this State, if the Probate 
court had jurisdiction of the subject-matter and the parties.” 90, 416. 
Fitzsimmons v. Johnson. 1891. 

Judgment of Justices in Other States.—WM. M. SMITH, Sp. J., held:: 
“ The case of Jourolman v. Massengill, 86 Tenu., 81, determining that, 
under the Act of 1832 (Code, sec. 4283), one person may convey prop¬ 
erty in trust for the benefit of another, and so limit and restrict it as to 
exempt it from the debts of the beneficiary thereafter created, does not 
authorize the creation of such a trust by a person for his own benefit.”* 
94, 721. Menkin v. Brinkley , 1895. 

See also 32,187. 


CONSTITUTION OF THE UNITED STATES. 


603 


CITIZENS OF DIFFERENT STATES. 

A r t. 4, Sec. 2. The citizens of each State shall be entitled 
to all privileges and immunities of citizens in the several States. 

A person charged in any State with treason, felonv, or other 
c ?me, who shall flee from justice and be found in another State, 
shall on demand of the executive authority of the State from 
which he fled, be delivered up, to be removed to the State having 
jurisdiction of the crime. 

No person held to service or labor in one State, under the 
laws thereof, escaping into another, shall, in consequence of any 
law or regulation therein, be discharged from such service or 
labor, but shall be delivered up on claim of the party to whom 
such service or labor may be due. 

Suits in Courts of This State Between Citizens of Another State — 
Construction of this Clause. —The question in this case was whether a 
citizen ot Pennsylvania could commence a suit, by original attachment, 
against another citizen of Pennsylvania, in the courts of this State, 
under the Act of 1794, ch. 1, sec. 21. (Hay. Rep., p. 183; H. & C., vol. 1, 
p. 12; Code 1858, 3455; T. & S., 3459; M. & V., 4192.) “It was argued 
that the distinctions in the statute, drawn between citizens of this State 
and citizens of any other State, were against the Constitution of the 
United States; for by that it is provided, art. 4, sec. 2, ‘that the citizens 
of each State shall be entitled to all the privileges and immunities of 
citizens in the several States. And that, therefore, the legislature of 
Tennessee were not authorized to pass any statute showing a favor to 
her own citizens not extended to the citizens of any other State.’” 

Overton, J., said: “The act of assembly is plain, express, and can 
not be misunderstood; it evidently limits the commencing of a suit, by 
original attachment, to citizens of this State, or against citizens of this 
State; and never can operate where both parties are non-residents. 
The Constitution of the United States is not incompatible with this act 
of assembly. The object of the Constitution was to secure to the citi¬ 
zens of every State an equal administration of justice as it regarded 
their essential rights, either of property or person, by the courts of 
every State; and was not at all intended to interfere with the mode of 
prosecuting those rights. This seems to have been the understanding 
of several States, as some of them have passed such discriminating 
laws; for instance, in Kentucky, a non-resident is compelled to give 
security for costs before he cau commence a suit of any description, 
whereas the citizens of the State are under no such necessity. The 
constitutionality of such laws has not been questioned by any adjudi¬ 
cated case within my knowledge.” 

Whyte, J., concurred: “I admit that the legislature of Tennessee 
has no right to pass a law violating the provisions of the Constitution 
of the United States, but the clause in the statute now under discussion 
is nohow violative of that instrument. It was alone the object of the 


604 


CONSTITUTION OF THE UNITED STATES. 


framers of the Constitution, by inserting the section which has been 
relied upon by the counsel for the plaintiff to secure the administration 
of impartial justice when the cause got into court, alike to the non¬ 
resident and to the citizen. It requires only for instance, that it shall 
be necessary to produce the same evidence in order to support an action 
by a citizen, as if it had been brought by an inhabitant of another State, 
but it never meant to disturb the local policy of the several States as 
to the mode of commencing actions.” 

On a subsequent day, in delivering the opinion of the court, Whyte, J., 
said: “We believe the clause in the Constitution was not designed to 
affect cases of this kind. Suppose the State legislature to say that a 
citizen plaintiff when commencing a suit need not give security for 
costs, but that a plaintiff, who was a citizen of another State, should, 
or that a citizen defendant should be summoned, and that a defendant 
who was not a citizen should be compelled to give special bail to the 
action, would these provisions be inconsistent with the Constitution? 
It is conceived not. The States, it seems to us, are still left at liberty 
to prescribe the mode of commencing and conducting suits in their own 
courts, and that if they provide extraordinary remedies for their own 
citizens in extraordinary cases, it will not from thence follow that citi¬ 
zens of other States can claim them likewise; they are still left at 
liberty to pursue their debtors in the ordinary way where they can be 
found. It seems to us most probable that this clause in the Constitu¬ 
tion was intended to compel the general government to extend the same 
privileges and immunities to the citizens of every State, and not to per¬ 
mit that government to grant privileges or immunities to citizens of 
some of the States, and withhold them from those of others; and that 
it was never designed to interfere with the local policy of the State 
governments as to their own citizens.” 3, 50. Kincaid v. Francis. 1812. 

Bail in a Criminal Case Released by the Surrender of Principal by the 
Governor Upon a Requisition From Another State. — TURLEY, J., held: 
“It is a good defense to a scire facias against bill, in a criminal case 
upon a forfeited recognizance, that, between the date of entering into 
the recognizance and the time fixed for the appearance of the principal, 
the governor of the State had surrendered the principal to the authori¬ 
ties of another State upon the requisition of the governor of that State, 
and that the principal was still in jail in that State on a charge of mur¬ 
der.” 21, 259. The State v. Allen. 1840. 

See, also, 11, 387. 

Art. 4, Sec. 3. New States may be admitted by the congress 
into this Union, but no new State shall be formed or erected with¬ 
in the jurisdiction of any other State, nor any State be formed by 
the junction of two or more States, or parts of States, without 
the consent of the legislatures of the States concerned, as w r ell as 
of the congress. 


CONSTITUTION OF THE UNITED STATES. 


605 


The congress shall have power to dispose of and make all 
needful rules and regulations respecting the territory or other 
property belonging to the United States; and nothing in this 
Constitution shall be so construed as to prejudice any claims of 
the United States or of any particular State. 

Art. 4, Sec. 4. The United States shall guarantee to every 
State in this Union a republican form of government, and shall 
protect each of them against invasion; and on application of the 
legislature, or of the executive (when the legislature can not be 
convened), against domestic violence. 

See page 396, and 43 Tenn., page 562. 


ARTICLE V. 

The congress, whenever two-thirds of both houses shall 
deem it necessary, shall propose amendments to this Constitu¬ 
tion, or, on the application of the legislatures of two-thirds of 
the several States, shall call a convention for proposing amend¬ 
ments, which, in either case, shall be valid to all intents and 
purposes, as part of this Constitution, when ratified by the legis¬ 
latures of three-fourths of the several States, or by convention 
in three-fourths thereof, as the one or the other mode of ratifica¬ 
tion may be proposed by the congress; provided that no amend¬ 
ment which may be made prior to the year one thousand eight 
hundred and eight shall in any manner affect the first and fourth 
clauses in the ninth section of the first article; and that no 
State, without its consent, shall be deprived of its equal suffrage 
in the senate. 

ARTICLE VI. 

All debts contracted and engagements entered into before 
the adoption of this Constitution snail be as valid against the 
United States under this Constitution as under the confederation. 

This Constitution, and the laws of the United States which 
shall be made in pursuance thereof, and all treaties made, or 
which shall be made, under the authority of the United States, 
shall be the supreme law of the land; and the judges in every 
State shall be bound thereby, anything in the Constitution or 
laws of any State to the contrary notwithstanding. 

See page 155. 

The senators and representatives before mentioned, and the 
members of the several State legislatures, and all executive and 
judicial officers, both of the United States and the several States, 
shall be bound by oath or affirmation to support this Constitu¬ 
tion; but no religious test shall ever be required as a qualifica¬ 
tion to any office or public trust under the United States. 

ARTICLE VII. 

The ratification of the conventions of nine States shall be 
sufficient for the establishment of this Constitution between the 
States so ratifying the same. 

Done in convention, by the unanimous consent of the States 
present, the seventeenth day of September, in the year of our 
Lord one thousand seven hundred and eighty-seven, and of the 
independence of the United States of America the twelfth. In 
witness whereof we have hereunto subscribed our names. 

George Washington, President. 

Attest: William Jackson, Secretary. 


606 


CONSTITUTION OF THE UNITED STATES. 

* 

AMENDMENTS TO THE CONSTITUTION, 

PROPOSED BY CONGRESS AND RATIFIED BY THE LEGISLATURES OF 

THE SEVERAL STATES, PURSUANT TO THE FIFTH ARTICLE 
OF THE ORIGINAL CONSTITUTION. 

Article I. Congress shall make no law respecting an estab¬ 
lishment of religion, or prohibiting the free exercise thereof; or 
abridging the freedom of speech, or of the press, or the right of 
the people peaceably to assemble and to petition the government 
for a redress of grievances. 

Art. II. A well-regulated militia being necessary to the secu¬ 
rity of a free State, the right of the people to keep and bear 
arms shall not be infringed. 

See pages 231, 234. 

Art. III. No soldier shall in time of peace be quartered in 
any house without the consent of the owner, nor in time of war, 
but in a manner to be prescribed by law. 

Art. IV. The right of the people to be secure in their per¬ 
sons, houses, papers, and effects, against unreasonable searches 
and seizures, shall not be violated, and no warrants shall issue 
but upon probable cause, supported by oath or affirmation, and 
particularly describing the place to be searched and the person 
or things to be seized. 

See page 23. 

Art. V. No person shall be held to answer for a capital or 
otherwise infamous crime unless on a presentment or indictment 
of a grand jury, except in cases arising in the land or naval 
forces, or in the militia, when in actual service in the time of 
war or public danger; nor shall any person be subject for the 
same offense to be twice put in jeopardy of life or limb; nor 
shall be compelled in any criminal case to be a witness against 
himself, nor be deprived of life, liberty, or property, without 
due process of law; nor shall private property be taken for 
public use without just compensation. 

See pages 9, 43, 63, 90, 99, 107, 208. 

Art. VI. In all criminal prosecutions the accused shall enjoy 
the right to a speedy and public trial, by an impartial jury of 
the State and district wherein the crime shall have been com¬ 
mitted, which district shall have been previously ascertained by 
law, and to be informed of the nature and cause of the accusa¬ 
tion; to be confronted with the witnesses against him; to have 
compulsory process for obtaining witnesses in his favor, and to 
have the assistance of counsel for his defense. 

See page 85. 

Art. YII. In suits at common law, where the value in con¬ 
troversy shall exceed twenty dollars, the right of trial by jury 
shall be preserved, and no fact tried by a jury shall be otherwise 
re-examined in any court of the United States than according to 
the rules of the common law. 

Art. YIII. Excessive bail shall not be required, nor excessive 
fines imposed, nor cruel and unusual punishment inflicted. 

Art. IX. The enumeration in the Constitution of certain 
rights shall not be construed to deny or disparage others retained 
by the people. 

Art. X. The powers not delegated to the United States by 
the Constitution, nor prohibited by it to the States, are reserved 
to the States respectively, or to the people. 

See page 568. 


CONSTITUTION OF THE UNITED STATES. 


607 


Art. XI. The judicial power of the United States shall not 
be construed to extend to any suit in law or equity commenced 
or prosecuted against one of the United States by citizens of 
another State, or by citizens or subjects of any foreign State. 

Art. XII. The electors shall meet in their respective States 
and vote by ballot for president and vice president, one of whom, 
at least, shall not be an inhabitant of the same State with them¬ 
selves ; they shall name in their ballots the person voted for as 
• president, and in distinct ballots the person voted for as vice 
president, and they shall make distinct lists of all persons voted 
for as president, and of all persons voted for as vice president, 
and of the number of votes for each, which list they shall sign 
and certify, and transmit, sealed, to the seat of the government 
of the United States, directed to the president of the senate; the 
president of the senate shall, in presence of the senate and 
house of representatives, open all the certificates, and the votes 
shall then be counted; the person having the greatest number 
of votes for president shall be the president, if sucli number be 
a majority of the whole number of electors appointed; and* if 
no person have such majority, then from the persons having the 
highest number, not exceeding three, on the list of those voted 
for as president, the house of representatives shall choose imme¬ 
diately, by ballot, the president. But in choosing the president, 
the votes shall be taken by States, the representation from each 
State having one vote; a quorum for this purpose shall consist 
of a member or members from two-thirds of the States, and a 
majority of all the States shall be necessary to a choice. And if 
the house of representatives shall not choose a president when¬ 
ever the right of choice shall devolve upon them, before the 
fourth day of March next following, then the vice president 
shall act as president, as in the case of the death or other consti¬ 
tutional disability of the president. The person having the 
greatest number of votes as vice president shall be the vice 
president, if such number be a majority of the whole number 
of electors appointed; and if no person have a majority, then 
from the two highest numbers on the list the senate shall choose 
the vice president; a quorum for the purpose shall consist of two- 
thirds of the whole number of senators, and a majority of the 
whole number shall be necessary to a choice. But no person 
constitutionally ineligible to the office of president shall be 
eligible to that of vice president of the United States. 

Art. XIII, Section 1. Neither slavery nor involuntary servi¬ 
tude, except as a punishment for crime, whereof the party 
shall have been duly convicted, shall exist within the United 
States or any place subject to their jurisdiction. 1 

See page .t69. 

Sec. 2. Congress shall have power to enforce this article by 
appropriate legislation. 


RESTRICTIONS OF STATE POWERS. 


Art. XIV. 2 Section 1. All persons born or naturalized in 
the United States, and subject to the jurisdiction thereof, are 
citizens of the United States and of the State wherein they 
reside. No State shall make or enforce any law which shall 
abridge the privileges or immunities of citizens of the United 
States ; nor shall any State deprive any person of life, liberty, or 
property, without due process of law, nor deny to any person 
within its jurisdiction the equal protection of the laws. 

See pages 43, 396. 


‘ Declared adopted by the secretary of state on the 18th day 

9 Fourteenth amendment promulgated by the secretary of state _8th of Julj, 1868. 



608 


CONSTITUTION OF THE UNITED STATES. 


Insurance — Statutes Regulating Liability on Policies Not Denial of 
Equal Protection of the Laws.—B eard, J., held: “The equal protection 
of the laws is not denied by the Acts of 1893, ch. 107, sec. 1, making 
void all stipulations in insurance policies limiting liability to less than 
the full amount of loss, if this does not exceed the amount of insurance.”" 
95 , 248. 1 Dugger v. Insurance Company. 1895. 

For provisions in old Constitution relating to arrest and return of fugitive slaves, see 33. 93. 


Sec. 2. Representatives shall be apportioned among the 
several States according to their respective numbers, counting 
the whole number of persons in each State, excluding Indians 
not taxed. But when the right to vote at any election for the 
choice of electors for president and vice president of the United 
States, representatives in congress, the executive and judicial 
officers of a State, or the members of the legislature thereof, is 
denied to any of the male inhabitants of such State, being 
twenty-one years of age, and citizens of the United States, or in 
any way abridged, except for participation in rebellion, or other 
crime, "the basis of representation therein shall be reduced in 
the proportion which the number of such male citizens shall 
bear to the whole number of male citizens twenty-one years of 
age in such State. 

Sec. 3. No person shall be a senator or representative in 
congress, or elector of president or vice president, or hold anj^ 
office, civil or military, under the United States, or under any 
State, who having previously taken an oath as a member of con¬ 
gress, or as an officer of the United States, or as a member of 
any State legislature, or as an executive or judicial officer of any 
State, to support the Constitution of the United States, shall 
have engaged in insurrection or rebellion against the same, or 
given aid or comfort to the enemies thereof. But congress may, 
by a vote of two-thirds of each house, remove such disability. 

Sec. 4. The validity of the public debt of the United States, 
authorized by law, including debts incurred for payment of pen¬ 
sions and bounties for services in suppressing insurrection or 
rebellion, shall not be questioned. But neither the United 
States nor any State shall assume or pay any debt or obligation 
incurred in aid of insurrection or rebellion against the United 
States, or any claim for the loss or emancipation of any slaves; 
but all such debts, obligations, and claims shall be held illegal 
and void. 

Sec. 5. That congress have power to enforce, by appropriate 
legislation, the provisions of this article. 

Art. XV, Section 1 . The rights of citizens of the United 
States to vote shall not be denied or abridged by the United 
States, or any State, on account of race or color, or previous 
condition of servitude. 

Sec. 2. Congress shall have power to enforce this article by 
appropriate legislation. 

Declared adopted by the secretary of state March 30, 1870. 


1 See same case, art. 1, sec. 8 p. 44; art. 1. sec. 20, p. 154. 



INDEX TO CONSTITUTION OF UNITED STATES. 


609 


INDEX TO THE CONSTITUTION OF THE UNITED STATES. 


! In this Index the abbreviation am. stands for amendment.] 


Abridgement of right to vote abridges representation.am. 14 

Absent, senate to choose president pro tern, when vice president is. 1 

members, congress may compel attendance of. 1 

Accept, what may not be accepted, etc., by United States officers from foreign 

States, etc. 1 

Account of receipt and expenditures to be published. 1 

Act as president, congress to declare who shall, in vacancy. 2 

Acts, each State to give faith and credit to acts, etc., of other States. 1 

Adjourn, how congress shall, from day to day. 1 

with consent. 1 

Adjournment of congress, its effect on the president’s veto. 1 

questions of, excepted from president’s concurrence. 1 

when congress disagree on, the president to adjourn it. 2 

Admiralty jurisdiction, judicial power to extend to. 3 

Admitted, new States may be, by congress. 4 

Adoption of Constitution not to affect validity of debts, etc. 6 

Advice and consent of senate, when president must have. 2 

Affirmation. (See Oath.) 

Age for representative in congress 25 years. 1 

senator in congress 30 years. 1 

president 35 years. 2 

vice president 35 years.am. 12 

Agreement, States not to make, without consent of congress. 1 

Aid given to United States’ enemies disqualifies.am. 14 

Aliens not eligible as president or vice president. 2 

Aliens not eligible as president or vice president. 2 

Alliance, no State shall enter into. 1 

Ambassadors, how nominated and appointed. 2 

president shall receive. 2 

judicial power to extend to cases affecting. 3 

in cases affecting. Supreme court has original jurisdiction. 3 

Amendment, XII, congress can enforce.am. 13 

XIV, congress can enforce.am. 14 

XV, congress can enforce.am. 15 

Amendments in revenue bills, senate may make. 1 

to Constitution, how proposed and ratified. 5 

Appellate jurisdiction, Supreme court shall have, as to law and fact. 3 

Appoint electors, each State shall. 2 

Appointed to office, when senator or representative may not be. 1 

electors, senators, and office holders not to be. 2 

Appointment of militia officers reserved to the States. 1 

senators temporarily by executives of States. 1 

Appointments by president, what and how made. 2 

Appropriation for army not to be for more than two years. 1 

no money to be drawn from treasury without legal. 1 

Approval by president of bills. (See Law.) . 

required to orders, resolutions, etc., of congress. 1 

Armies, congress can raise and support. 1 

Arms, right to bear, not to be infringed.am. 2 

Army, congress cau make rules, etc., for. 1 

president commander-in-chief of. 2 

Arrest, when representatives and senators free from. 1 


Sec. 

2 

3 

5 


9 

9 

1 

1 

5 

5 

7 

7 

3 

2 

3 


3 

1 

10 


3 

1 

1 

10 

2 


3 

2 

2 

•» 


5 

2 


2 

1 

6 

1 

8 

3 

2 

8 

9 


8 

8 

2 

6 


Cl. 

P 

.. 

608 

5 

590 

1 ' 

590 

7 

594 

6 

594 

5 

596 

.. 

599 

1 

590 

4 

590 

•> 

591 

3 

591 

.. 

596 

1 

597 

1 

004 

1 

605 

2 

59T. 

2 

589 

3 

590 

4 

596 

3 

607 

3 

594 


608 

4 

596 

3 

59*; 

1 

594 

2 

596 

.. 

59C) 

1 

597 

2 

597 

.. 

607 

.. 

608 


608 

1 

591 

.. 

605 

2 

597 

2 

595 

2 

591 

2 

595 

16 

592 

2 

590 

2 

5% 

12 

592 

7 

594 

3 

591 

12 

592 

.. 

606 

14 

592 

1 

596 

1 

590 


39 






















































610 


INDEX TO CONSTITUTION OF UNITED STATES. 


Arsenals, congress to exercise exclusive jurisdiction over.•. 

Article, congress has power to enforce. (See Amendments.) . 

Arts, congress to have power to promote. 

Assemble, when congress to. 

right of people to, not to be abridged.am. 

Attainder, no bill of, to be passed. 1 

no State to pass any bill of. 1 

of treason not to work corruption of blood. 3 

Attendance of absent members in congress may be compelled. 1 


Art. 

1 

1 

1 

1 


Sec. 

8 

8 

4 

9 

10 

3 

5 


Cl. 

17 

8 

1 

3 

1 

2 

1 


P. 

592 

591 

590 

606 

594 

594 

599 

590 


members of congress privileged from arrest during. 


1 

6 

1 

590 

Authors, exclusive rights of. 


1 

8 

8 

591 

B 

Ballot, electors to vote by, for president and vice president. 

.am. 

12 


1 

607 

house of representatives to choose president by, when. 

.am. 

12 

. . 

1 

607 

Bankruptcy, congress to establish uniform laws on . 


1 

8 

4 

591 

Basis of representation, when reduced. 

.am. 

14 

2 

. . 

608 

Bill of attainder not to be passed. 


1 

9 

3 

594 

how passed, approved, objected to, or passed over objection - 


1 

7 

2 

591 

revenue to originate in house, but may be altered in senate. 


1 

7 

1 

591 

Bills of credit, States shall not emit.. 


1 

10 

1 

594 

Blood, attainder of treason not to work corruption of. 


3 

3 

2 

599 

Borrow money, power of congress to. 


1 

8 

2 

591 

Bound to service, persons included in enumerations for representation. 


1 

2 

3 

589 

Bounties, pavment of debt for, not to be questioned. 

.am. 

14 

4 

. . 

608 

Breach of peace, a senator or representative may be arrested for a. 


1 

6 

1 

590 

Bribery, civil officers convicted of, to be removed.. 


2 

4 

1 

596 

Buildings, congress has exclusive legislation for needful. 


1 

8 

17 

592 

Business, a majority of each house a quorum to do. . 


1 

5 

1 

590 

C 

Capital crime, how persons held to answer. 

.am. 

5 



606 

Capitation tax, to be laid only in proportion to census.•. 


1 

9 

4 

594 

what amendments shall not affect provisions for. 


5 


, , 

605 

Captures, congress to make rules concerning. 


1 

8 

11 

592 

Cases to which judicial power shall extend. 


3 

2 

1 

597 

Cause, no warrant shall issue except upon probable. 

.am. 

4 

. . 

. , 

606 

Census, when to be taken. 


1 

2 

3 

589 

capitation tax to be laid only in proportion to. 


1 

9 

4 

594 

what amendments not to affect provision for.. 


5 

, , 


605 

Chief justice to preside when president tried for impeachment. 


1 

3 

6 

590 

Chosen. (See Elected.) How president and vice president. 

am. 

12 


1 

607 

Citizen of United States, who is. 

.am. 

14 

1 

, . 

607 

to be a senator must have been nine years a. 


1 

3 

3 

590 

only is eligible for president. 


2 

1 

5 

596 

Citizen, the judicial power as it respects. 


3 

2 

1 

597 

of each State entitled to privileges of several States. 


4 

2 

1 

603 

suits against United States judicial power not to extend to, when 

.am. 

11 

., 

, , 

607 

their rights, privileges, etc., not to be abridged. 

.am. 

14 

i 


607 

their representation. (See Representation.) . 

.am. 

14 

2 

, . 

608 

right of, to vote not abridged on account of color, etc. 

.am. 

15 

i 

, , 

608 

Civil officers, shall be removed on conviction of treason, etc. 


2 

4 


596 

Claim, fugitives held to service to be delivered upon. 


4 

2 

3 

603 

Claims for loss or emancipation of slaves not to be paid. 


14 

4 


608 

insurrectionary, declared illegal. 


14 

4 

, , 

608 

of a State or of United States not to be prejudiced by construction... 

4 

3 

2 

605 

Clear, vessels from one State not obliged to, at another. 


1 

9 

6 

594 

Coin money, congress has power to . 


1 

8 

5 

591 

no State shall. 


1 

10 

1 

594 

(See Counterfeiting.) . 


1 

8 

6 

591 
























































INDEX TO CONSTITUTION OF UNITED STATES. 


611 


Coin, no State shall make anything but, a tender in payment. 1 

Collect duties, congress has power to lay and. 1 

Color, right to vote not to be abridged on account of.am. 15 

Comfort given to enemies of United States disqualifies.am. 14 

Commander-in-chief, president to be. 2 

Commerce, congress has power to regulate. 1 

no preference in, to be given to one State over another. 1 

Commissions to fill vacancies, president can grant. 2 

of United States officers to come from president. 2 

Common defense, congress empowered to provide for. 1 

law suits, trial by jury at, and, law rules preserved.am. 7 

Compact, States not to make, with each other or with foreign powers. 1 

Compensation, senators and representatives to receive. 1 

of president, not to be altered. 2 

of judges, not to be altered. 3 

private property not taken for public use without.am. 5 

Compulsory process, accused to have, for obtaining witnesses.am. 6 

Concur in amendments, senate may, in revenue bills. 1 

Concurrence of two-thirds necessary for impeachment conviction. 1 

Confederation, no State shall enter into any. 1 

debts contracted under the, to be valid. 6 

Confession in open court, persons convicted for treason on.am. 3 

Confronted, accused persons to be, by witnesses. 6 

Congress, U. S. legislative powers vested in. 1 

to consist of senate and house of representatives. 1 

member of ( See Senators, Representatives.) 

shall direct how census shall be taken. 1 

number of members of. 1 

election for, powers of legislature and congress in. 1 

when it shall assemble. 1 

Congress, powers of, to judge of elections, adjourn, etc. 1 

determine rules, and punish, etc., members. 1 

each house to keep and publish journal. 1 

adjournments of, how regulated. 1 

revenue bills, how acted upon . 1 

bills passed by, to go to president for approval, etc. 1 

how bills returned to, to be reconsidered.... . 1 

what resolutions, etc., of, to go to president, etc. 1 

power of, to lay and collect taxes, etc. 1 

to borrow money. 1 

to regulate commerce. 1 

to establish naturalization and bankruptcy laws. 1 

to coin money and fix standard of weights and measures. 1 

to provide for punishment of counterfeiting. 1 

to establish postoffices and roads. 1 

to promote art and science, and how. 1 

to constitute inferior tribunals. 1 

to punish piracy and offenses against international law—. 1 

to declare war, grant letters of marque, etc. 1 

to raise armies, term of appropriations for. 1 

to provide a navy. 1 

to make rules for government of army and navy. 1 

to provide for calling out militia, suppressing insurrections, etc. 1 

arming, etc., the militia. 1 

exclusively to legislate for District of Columbia, etc. 

to make laws for executing the powers of government. 1 

when it may prohibit, importation of persons. 1 

to grant no'title of nobility, and regulate receipt of honors, etc. 1 

no State to impose duties without consent of. 1 


no State to lay duties, form compacts, make wars, etc., without con¬ 
sent of... 

may appoint time of choosing electors, and of their voting. 

may provide for vacancy of president and vice president. 


Sec. 

Cl. 

P. 

10 

1 

594 

8 

1 

591 

1 

• « 

,;,w 

3 

• . 

608 

2 

1 

5% 

8 

3 

591 

9 

6 

594 

2 

2 

596 

3 

1 

596 

8 

1 

591 

.. 

.. 

606 

10 

3 

594 

6 

1 

590 

1 

6 

5% 

1 

• . 

597 

. , 

, . 

606 

• . 

• • 

606 

7 

1 

591 

3 

6 

590 

10 

1 

594 

• . 

1 

605 

3 

1 

599 

• « 

.. 

605 

1 

. . 

589 

1 

•• 

589 

2 

3 

589 

2 

3 

589 

4 

1 

590 

4 

1 

590 

5 

1 

590 

5 

2 

590 

5 

3 

590 

5 

4 

590 

7 

1 

591 

7 

2 

591 

7 

2 

591 

7 

3 

591 

8 

1 

591 

8 

2 

591 

8 

3 

591 

8 

4 

591 

8 

5 

591 

8 

6 

591 

8 

7 

591 

8 

8 

591 

8 

9 

591 

8 

10 

592 

8 

11 

592 

8 

12 

592 

8 

13 

592 

8 

14 

592 

8 

15 

592 

8 

16 

592' 

8 

17 

592 

8 

18 

592 

9 

1 

593 

9 

7 

594 

10 

2 

594 

10 

3 

594 

1 

3 

596 

1 

5 

596 































































612 


INDEX TO CONSTITUTION OF UNITED STATES. 


Congress, may decide how inferior officers may receive appointment.. 


Art. 

2 

Sec. 

2 

CL 

2 

P. 

596 

president to give information, etc., to; when he can convene and 
adjourn .. 

2 

3 


596 

Congress, when it may appoint place of trial.. 


3 

2 

2 

596 

can declare punishment of treason. 


3 

3 

2 

599 

may prescribe how State acts, etc., shall be proved, etc. 


4 

1 

.. 

599 

mav admit new States, when consent of legislature required... 


4 

o 

O 

1 

604 

power of, over United States territory and property. 


4 

3 

2 

605 

may propose constitutional amendments. 


5 



605 

member of to take oath to Constitution. 


6 

. . 

3 

605 

not to interfere with freedom of religion, of the press, and of the 
people to petition.am. 

1 



606 

voters for president and vice prssident to be counted before.... 


12 

. . 

1 

607 

amendments, power of, to enforce. (See Amendments.) 
right to vote for representatives to, effects of changing its 
cise. 

exer- 

14 

2 


608 

disability of members of, engaged in insurrection. 


14 

2 


608 

may remove disabilities by a two-thirds vote. 


14 

2 

. . 

608 

members of, who were in insurrection, disqualified. 


14 

3 

. . 

608 

Connecticut, her representation in first congress. 


1 

2 

3 

589 

Consent of congress. (See Congress, 1, 9; 1, 5, and 1, 10.) 

legislatures, when required in forming new State. 


4 

3 


604 

State, without it no State to be deprived of legal suffrage in senate.. 

5 


. . 

605 

States, this Constitution adopted by the unanimous. 


7 


. . 

605 

Consent required for quartering troops in houses during peace. 


3 


. . 

606 

Constitution, congress can make laws for executing requirements of... 


1 

8 

18 

592 

president to take oath to support. 


2 

1 

6 

596 

judicial power to extend to cases arising under. 


3 

2 

1 

597 

not to be construed to prejudice claims. 


4 

3 

2 

605 

amendments to, how made. 


5 

. . 

. . 

605 

former debts, etc., valid under. 


6 

1 

1 

605 

the supreme law of the land. 


6 


2 

605 

of the States subordinate to that of the United States. 


6 

. . 

2 

605 

State and United States officers to take oath to support. 


6 

. . 

3 

605 

ratification of nine States establishes the, in those States. 


7 


. , 

605 

adopted unanimously by States present . 


7 


. , 

605 

enumerated rights in not to disparage other rights. 


9 



606 

powers not delegated by the, etc., are reserved to the States or 
people.am. 

10 



606 

effect of breaking oath taken to support. 


14 

3 

. . 

608 

Consuls, judicial power to extend to cases affecting. 


3 

2 

2 

597 

Contracts, no State shall pass laws impairing. 


1 

10 

1 

594 

Controversies, to what, the judicial power extends. 


3 

2 

1 

597 

Conventions for proposing and ratifying amendments to the constitution... 

5 

, , 

, , 

605 

Corruption of blood, attainder not to work. 


3 

3 

2 

599 

Counsel, the criminally accused to have, for his defense. 


6 

, # 

.. 

606 

Counterfeiting, congress can provide punishment for. 


1 

8 

6 

591 

Court. (See Supreme Court.) . 


2 

2 

2 

596 

Court open, effect of confession in. 


3 

3 

1 

597 

of United States, when trial must be by jury. 


7 


.. 

606 

Courts, congress can constitute inferior. 


1 

8 

9 

591 

in what United States judicial power is invested. 


3 

1 


597 

of law, who may appoint inferior officers of. 


2 

2 

2 

596 

Credit of U. S., congress can borrow money on the. 


1 

8 

2 

591 

no State to emit bills of. 


1 

10 

1 

594 

each State to give, to acts, records, etc., of every other State_ 


4 

1 


599 

Crime, fugitives on account of, to be delivered up. 


4 

2 

2 

603 

capital, how persons held to answer for. 


5 



606 

may deprive of right to vote. 


14 

2 


608 

servitude for, a punishment. 


13 

1 


607 

trials for, to be by jury, except impeachment. 


3 

2 

3 

598 

Criminal cases, none compelled to testify against themselves in . 


5 



606 

prosecutions, rights of accused persons in.. 


6 



606 

Cruel punishment not to be inflicted. 


8 



606 


























































INDEX TO CONSTITUTION OF UNITED STATES. 


613 


Death of president and vice president, duty of congress in case of. 2 

Debate, senators and representatives, not to be questioned for speech in. 1 

Debt of U. S., validity of not be questioned.am. 14 

insurrectionary, not to be assumed.am. 14 

Debts of U. S., congress has power to pay. 1 

no State to make anything but specie a tender in payment of. 1 

former valid under this Constitution. 6 

Defense, congress shall provide for the common. 1 

to provide for, Constitution established {Preamble). 

in criminal prosecution, has right to counsel for his.am. 6 

Defend the Constitution, president to take an oath to. 2 

Delaware, her representation in the first congress. 1 

Delegates of State legislatures to take oath to this Constitution. 6 

Demand, fugitive from justice to be delivered up on. of State. 4 

Departments, president may require written opinions of heads of. 2 

congress may invest appointing powers in heads of. 2 

Direct tax, how to be apportioned. . 1 

to be laid only in proportion to census. 1 

Disability, by whom incurred, how removed.am. 14 

Discipline of militia, congress to provide for. 1 

Discoveries, exclusive right to secure to inventors. 1 

Disorderly behavior, each house may punish members for. 1 

Disqualification, judgment on impeachment a. 1 

District, government power over a, of ten miles square. 1 

Divided, when senate equally, vice president to vote. I 

Dock yards, congress has exclusive power over. 1 

Domestic violence, United States to protect each State against. 4 

tranquillity, Constitution established to ensure. (Preamble.) 

Duties, congress has power to lay uniform. 1 

on imports, States not to lay, without congress consent. 1 

of president, at his death, etc., devolve on vice president. 2 

of executive departments, president may require opinion on. 2 

might have been imposed upon imported persons. 1 

not to be laid on exportations from any State. 1 

of tonnage, no State shall lay any, without congress consent. 1 


E 

Effect of proceedings, etc., of States, congress may prescribe the. 4 

Effects, rights of people to be secure in their, not to be violated.am. 4 

Elected, representatives to be every second year. 1 

two senators from each State to be for six years. 1 

Election, writs of, to be issued in vacancies. 1 

of president and vice president, their term of office. 2 

appointment of electors of. - 

how conducted. am - 12 

who elected. ara - 12 

who ineligible. am 12 

Elections, when right to vote at, denied, the representation decreased.. .am. 14 

who shall prescribe time, place, etc., of, for senators, etc. 1 

each house shall judge of the, of its members. 1 

Elector, who not qualified to be. 

a person who was in insurrection can not be an.am. 14 

when right to vote for, denied, proportion of representation reduced 14 

Electors, qualification of, for representative in congress. 1 

of president, etc., appointment, qualifications, etc., of. 2 

how to meet and vote. ara * 

persons who were engaged iu insurrection, can not be.am. 14 

Eligibility of representatives in congress. 1 

senator in congress. 1 

electors of president and vice president. 2 

president. “ 

vice president. 


Sec 

1 

6 

4 

4 

8 

10 

8 


1 

2 


2 

2 

o 

9 

3 

8 

s 

5 

3 

8 

3 
8 

4 

8 

10 
1 
2 
9 
9 

10 


1 

2 

3 

2 

1 

1 

1 

2 

3 
2 

4 

5 
1 
3 
2 
2 
1 

3 

•> 

3 

1 

1 

2 


Cl. P. 

5 596 

1 590 

.. 608 
.. 608 
1 591 

1 594 

1 605 

1 591 

.. 606 

6 596 

3 589 

3 605 

2 603 

1 5% 

2 596 

3 589 

4 594 
.. 608 

16 592 

8 591 

2 590 

6 590 

17 592 

4 590 

17 592 

.. 605 

1 591 

2 594 

5 5% 

1 596 

1 593 

5 594 

3 594 


.. 599 

.. 606 
1 589 

1 589 

4 5S9 

1 595 

2 595 

.. 607 

.. 607 

.. 607 

.. 608 

1 590 

1 590 

2 595 
.. 608 
.. 608 

1 589 

2 595 

.. 607 

.. 608 

2 589 

3 590 

2 595 

4 5% 

.. 607 


























































614 


INDEX TO CONSTITUTION OF UNITED STATES. 


E 


Emancipation slave, neither U. S. or State to pay any claim for. 


Art. 

14 

Sec. 

4 

Cl. 

P. 

608 

Emolument, U. S. officers not to accept from any king, etc. 


1 

9 

8 

594 

president to have no, except his compensation. . 


2 

1 

6 

596 

Emoluments that senators and representatives may not enjoy, what .... 


1 

6 

2 

591 

Enemies, adhering to, etc., U. S. enemies, is treason. 


3 

3 

1 

599 

of U. S., giving aid or comfort to, disqualifies. 

.am. 

14 

8 

.. 

608 

Enumeration of the people when made. 


1 

2 

3 

589 

capitation tax to be the only proportion to. 


1 

9 

4 

594 

of rights in Constitution not to disparage others. 

.am. 

9 



606 

Equal suffrage in senate, no State to be deprived of without its consent. 


5 


. . 

605 

Equity, judicial power to extend to cases in. 


3 

2 

1 

597 

to what cases judicial power shall not extend. 

.am. 

11 



607 

Escaping, persons held to labor, to be delivered up. 


4 

2 

3 

603 

Establish justice, etc., Constitution formed to, ( Preamble) and. 


3 

1 

. • 

597 

this Constitution, ratification of nine States shall. 




. . 

603 

Establishment of religion, congress shall not regulate. 

.am. 

1 



606 

Excessive bail, etc., not to be required. 

.am. 

8 


. . . 

606 

Excises, congress has power to lay uniform. 


1 

8 

1 

591 

Exclusive rights to writing and discoveries. 


1 

8 

8 

591 

Execute, militia mav be called to, the laws, etc. 


1 

8 

15 

592 

president to take oath to, his office. 


2 

1 

6 

596 

Executed, president to take care laws are faithfully. 


2 

3 


596 

Executive authority of any State to issue writs of election, etc. 


1 

2 

4 

589 

officer of any State, effects of breach of oath. 

.am. 

14 

3 


608 

officers, denying right to vote for, reduces representation. 

.am. 

14 

2 

• . 

608 

Expel a member, two-thirds of either house may.. 


1 

5 

2 

590 

Expenditures, statements of, to be published.. 


1 

9 

7 

594 

Exports, from a State not to be taxed. 


1 

9 

5 

594 

States shall not lay duty on without consent of congress. 


1 

10 

2 

594 

Ex post facto law not to be passed. 


1 

9 

3 

594 

a a u u a n 


1 

10 

1 

594 

Extraordinary occasions, president may convene congress on. 


2 

3 

. . 

596 


F 


Fact and law, Supreme court has appellate jurisdiction as to. 


3 

2 

2 

597 

Faith, full, to be given to public acts, etc., of a State. 


4 

i 

. , 

599 

Felonies, congress can define and punish on the seas. 


1 

8 

10 

592 

Felony, members of congress may be arrested for. 


1 

6 

1 

599 

fugitives charged with, to be delivered up. 


4 

2 

2 

603 

Fines, excessive, not to be imposed. 


8 

. , 

, . 

606 

Foreign coin, congress has power to regulate value of. 


1 

8 

5 

591 

nations, congress has power to regulate commerce with. 


1 

8 

3 

591 

power, States not to enter into compact, etc., with. 


1 

10 

3 

594 

State, no present, etc., to be accepted from. 


1 

9 

7 

594 

judicial power of United States not to extend to suits with subjects 





of.. 


11 



607 

Forfeiture, attainder of treason not to work. 


3 

3 

2 

599 

Forts, congress has exclusive power over. 


1 

8 

17 

592 

Freedom of speech and the press, congress pot to abridge. 


1 



606 

Fugitives from justice to be delivered up. 


4 

2 

2 

603 

Fugitives from labor to be delivered up. 


4 

2 

3 

603 


G 

General welfare, this Constitution established to promote. ( Preamble.) 


Congress has power to provide for. 

1 

8 

1 

589 

Good behavior, judges to hold their offices during. 

3 

1 

1 

597 

Government of the United States, congress shall make laws for. 

1 

8 

18 

592 

republican form of, guaranteed. 

4 

4 

1 

605 

seat of, established. 

1 

8 

17 


Grand jury, persons held to answer only on presentation of. am 

5 

606 

Grievances, right of people to petition for redress of. am 

1 



606 

























































INDEX TO CONSTITUTION OF UNITED STATES. 



615 

H 


Art. 

Sec. 

Cl 

p. 

Habeas corpus, not to be suspended except in rebellion, etc. 


1 

9 

2 

593 

House, when soldiers not to be quartered in anv. 


3 


# # 

606 

of representatives, congress to consist of a senate and. 


1 

1 

, , 

589 

members to, elected every second year. 


1 

2 

1 

589 

qualifications of members of. 


1 

2 

2 

589 

shall choose speaker and officers. 


1 

2 

5 

589 

has sole power of impeachment. 


1 

2 

5 

589 

each, its power over members, quorums, and adjournments of.. 


1 

5 

1 

590 

may determine rules, punish or expel a member. 


1 

5 

2 

590 

shall keep and publish a journal. 


1 

5 

3 

590 

neither to adjourn without consent. 


1 

5 

4 

590 

of representatives, revenue bills to originate in. 


1 

7 

1 

591 

when it shall choose the president. 


12 

1 

• , 

607 

Houses, right of people to be secure in. 


4 


• • 

606 

of congress, shall propose Constitutional amendments. 


5 

• . 

• • 

605 

president mav convene either or both. 


2 

3 

• • 

596 

may remove disabilities. 


14 

3 

.. 

608 


I 


Illegal, debts, etc., in aid of rebellion are.am. 

Immunities, citizens of each State entitled to, of other States. 

of citizens not to be abridged.am. 

Impeachment, house of representatives has sole power of. 

senate has sole power to try. 

to be on oath, chief justice to preside. 

a two-thirds vote necessary to convict on. 


judgment to extend only to removal and disqualification. 

party convicted on, liable to punishment by law... 

president can not grant pardon in case of. 

civil officers removed on conviction by. 

trial on, without jury. 

Importation of persons, when prohibited. 

Imports, congress has power to lay uniform. 

no State to lay, without consent of congress. . 

Inability of president or vice president, in case of, who shall act. 

Indians not taxed excluded in representative enumeration. 

<« *. «< “ “ .am. 


Indictment necessary, to hold to answer for crime. 

persons convicted on impeachment subject to . 

Inferior courts, congress has power to create. 

invested with judicial power.... 

Inhabitant of his State, a representative in congress must be an 


senator must be an.... 
Inhabitants, male, as right 
duced. 


to vote is denied to, representation 


is re- 
.. .am. 


Insurrection, United States to protect each State against.. 

who disqualified by participating in. 

debts for suppression of, etc., not to be questioned 

in aid of, or for loss, etc., of slaves illegal . 

Insurrections, congress may call out militia to suppress... 

Invaded, States not to engage in war except when. 

Invasion, a cause for suspension of habeas corpus . 

United States to protect each State against. 

congress may call out militia to expel. 

Inventors, exclusive rights of. 


14 

4 
14 

1 

1 

1 

1 

1 

1 

2 

*•> 

3 

1 

1 

1 

2 

1 

14 

5 
1 
1 

3 
1 
1 

14 

4 
14 
14 
14 

1 

1 

1 

4 

1 

1 


J 

Jeopardy, persons not to be twice putin. am - J 

Journal, each house to keep and publish a. 1 

president’s objections, and votes on reconsideration to be eutered on 1 

Judges of Supreme court, hew nominated and appointed. 2 


4 

2 

1 

o 

3 

3 

3 

3 

3 
2 

4 
2 

9 
8 
10 

1 

2 

2 

3 

8 

1 

2 

3 

2 

4 

3 

4 
4 
8 

10 
9 
4 
8 
8 


5 

7 

o 


• 

608 

1 

603 

. , 

607 

5 

589 

6 

590 

6 

590 

6 

590 

6 

590 

6 

590 

1 

596 

1 

596 

3 

598 

1 

593 

l 

591 

2 

594 

5 

5% 

3 

589 


608 


606 

6 

590 

9 

591 


597 

2 

589 

3 

590 


608 

, , 

605 


608 

, , 

608 

, * 

608 

15 

592 

3 

594 

2 

593 

, , 

605 

15 

592 

8 

591 


. 606 
3 590 

2 591 

2 5% 




























































616 INDEX TO CONSTITUTION OF UNITED STATES. 


duration in office and compensation of. 

in every State bound by Constitution, etc., over State laws. 

Judgment, limitation of, in impeachment cases. 

Judicial power of United States, where vested. 

its extent. 

. 

Art. 

3 

6 

1 

3 

3 

Sec. 

1 

3 

1 

2 

Cl. 

2 

6 

1 

P. 

597 

605 

590 

597 

597 

proceedings, each State to give credit to, of other States. 


4 

1 


599 

officers to take oath to this Constitution. 


6 


3 

605 

effects of denying right to vote for. 


14 

2 


608 

engaged in insurrection, disqualified. 

.am. 

14 

3 


608 

power of United States, limit of construction as to extent of. 

.am. 

11 



607 

to extend to maritime and admiralty jurisdiction. 


3 

2 

1 

597 

Jurisdiction, original and appellate of Supreme court.. 


3 

2 

2 

597 

no slavery within. 

.am. 

13 

1 

.. 

607 

of the crime, fugitives to be removed to State having. 


4 

2 

2 

603 

no new State to be erected within the, of another State. 


4 

3 

1 

604 

Jury, trials, except in impeachment, to be by. 


3 

o 

3 

598 

persons to answer charge of crime only by action of. 

.am. 

5 



606 

right of accused to trial by an impartial. 

am. 

6 



606 

trial by, in suits at common law. 

.am. 

7 



606 

fact tried by, may not be re-examined, except, etc. 

am. 

7 

.. 


606 

Justice, Constitution ordained to establish. ( Preamble.) 

chief shall preside when president tried on impeachment. 


1 

3 

6 

590 

fugitives from, to be delivered up. 


4 

2 

2 

603 

K 

King, prince, etc., honors, etc., from, received only by consent of congress.. 

1 

9 

8 

594 

L 

Labor duo in one State not to be abrogated in another. 


4 

2 

3 

603 

Land and naval forces, congress to make rules for government of. 


1 

8 

14 

592 

Land owned by United States, congress to have power over. 


1 

8 

17 

592 

Lands, claims, judicial power in controversies for. 


3 

2 

1 

. . . 

Law, persons convicted on impeachment punished bv. 


1 

3 

7 

590 

how bills in congress become. 


1 

7 

2 

591 

may become without president’s signature. 


1 

7 

2 

591 

of nations, congress may define and punish offenses against. 


1 

8 

10 

592 

ex post facto, not to be passed. 


1 

9 

3 

594 

no State shall pass. 


1 

10 

1 

594 

impairing contracts, no State shall pass. 


1 

10 

1 

594 

and equity, to what cases in, judicial power shall extend. 


3 

2 


597 

in fact. Supreme court has appellate jurisdiction as to. 


3 

2 

2 

597 

Constitution, and treaties, the supreme law of the land. 


6 


2 

605 

congress to make no, interfering with the press, etc. 

.am. 

1 

.. 

, , 

606 

due process of, necessary for the depriving of life, etc. 

am. 

5 



606 

due process of, necessary for the depriving of life by any State.. 

.am. 

14 

i 

, . 

607 

to ascertain district in which crime committed. 


6 



606 

suits at common, how regulated. 


7 


, . 

606 

Law or equity, how extent of United States judicial power construed in 

.am. 

u 

.. 

, . 

607 

every person to enjov equal protection of the. 


14 

i 


607 

Law, debt authorized by, validity of not to be questioned . 


14 

4 


608 

no State, shall abridge privileges of citizens. 


14 

1 


607 

Laws on naturalization and bankrupt to be uniform. 

1 

8 

4 

591 

of the Union, congress may call militia to execute. 


1 

8 

15 

592 

congress may make, for executing powers of government. 


1 

8 

18 

592 

inspection, States, exception of law-making power in favor. 


1 

10 

2 

594 

State, on imposts, subject to congressional revision. 


1 

10 

2 

594 

president to take care all, are faithfully executed. 


2 

3 

. . 

596 

Legislation, when congress has exclusive. 


1 

8 

17 

592 

congress mav enforce amendment XIII bv. 


13 

2 

, , 

607 

congress may enforce amendment XIV by. 


14 

5 


608 

congress mav enforce amendment XV by. 


15 

2 

, . 

608 
























































INDEX TO CONSTITUTION OF UNITED STATES. 


617 


L 

J>egislatiire, State electors for, can vote for congressional representative 

of each State shall choose two senators. 

to prescribe time, etc., holding elections for senators, etc. 


can apply to United States for protection, etc. 4 4 

disqualification for having taken oath as member of.am. 14 2 

effects of denying right to vote for members of.am. 14 2 

■Legislatures of States, consent of when required by United States in pur¬ 
chasing. y g 

may direct how electors shall be appointed. 2 1 

when consent of, required in forming new States. 4 3 

may apply for or ratify amendments. 5 

members of, to take oath to support Constitution. 6 

Letters of marque, congress may grant. 1 g 

Liberty, no person to be deprived of, without process of law.am. 5 

no person to be deprived of, by any State.am. 14 1 

Life, consequences of treason not to extend beyond. 3 3 

not to be put twice in jeopardy. am. 5 

to be taken only by process of law.am. 5 

to be taken only by process of law.am. 14 1 

List of electoral votes to be made..*.am. 12 

Loss of any slave not to be paid by United States.ain. 14 4 


Cl. P. 
1 589 

l 589 
1 590 

1 590 
.. 608 
.. 608 

17 592 

2 595 

1 604 

.. 605 

3 605 

11 592 

.. 606 
.. 607 

2 599 

.. 606 
.. 606 
.. 607 

.. 607 

.. 608 


M 


Magazines, forts, etc., congress to have exclusive power over. 1 8 

Majority of each house to constitute a quorum. 1 5 

the electors necessary to elect president or vice president.am. 12 

Majority of States to choose president when house elects him.am. 12 

members to choose vice president when senate elects him.am. 12 

Maritime jurisdiction, judicial power to extend to. 3 2 

Marque, congress may grant letters of. 1 8 

no State shall grant letters of. 1 10 

Maryland, her representation in first congress. 1 2 

Massachusetts, her representation in first congress. 1 2 

Males, when vote denied to any, representation reduced.am. 14 1 

Measures, president to recommend to congress. 2 3 

congress may fix standard of. t 8 

Member of State legislature, effects of breach of oath.am. 14 3 

Militia, congress may provide for calling out . 1 8 

congress may provide for organizing, disciplining, etc. 1 8 

president commander-in-chief of. when. 2 2 

necessary to a free State. am. 2 

executed for certain privileges.am. 5 

Ministers, (See Appointvienls — Ambassadors.) . 2 2 

public, president to receive. 2 3 

Misdemeanors, civil officers to be removed on conviction for. 2 4 

Money, congress has power to borrow. 1 8 

congress has power to coin, etc. 8 

congress may appropriate for army but for two years.. 1 8 

tobedrawm from treasury only on appropriation. 1 9 

no State shall coin. 1 10 


17 

1 


1 

11 

1 

3 


3 


1 

5 

15 

16 
1 


o 


2 

5 


12 


1 

1 


592 

590 
607 
607 
607 
597 
592 
594 
589 
589 

607 
596 

591 

608 

592 
592 
596 
606 
606 
596 
5% 
596 
591 

591 

592 
594 
594 


N 


Names of members, when to be entered upon journal. 1 

Natural born citizens only eligible for the presidency. 2 

Naturalized persons are citizens of their State and of the U. S.am. 11 

Naturalization, congress may establish uniform rule for. 1 

Naval forces, congress may make rules for government of. 1 

excepted from certain privileges.am. 5 

Navy, congress may provide and maintain a. 1 

the president commander-in.chief of the. 2 


5 3 590 

1 4 596 

1 ..607 

8 4 591 

8 14 592 

.. 606 
8 13 592 

2 1 596 


























































618 


INDEX TO CONSTITUTION OF UNITED STATES. 


N 


New Hampshire, her representatives in first congress. 


Art. 

1 

Sec. 

2 

Cl. 

3 

P. 

58fr 

New Jersey, “ “ “ “ . 


1 

2 

3 

589 

New York, “ “ “ “ . 


1 

2 

3 

589 

New States may be admitted by congress. 


4 

3 

1 

604 

Nobility, no title of, to be granted by United States. 


I 

9 

7 

594 

“ “ “ “ “ a State. 


1 

10 

1 

594 

Nominations, what, the president may make. 


2 

2 

2 

596. 

O 

Oath, senators to be on. in impeachment... 


1 

3 

6 

596 

form of, taken by president. 


2 

1 

6 

596 

by senators, representatives, etc., to support Constitution. 


6 

.. 

3 

605 

required for issue of warrant. 


4 


.. 

606 

disqualification by breach of. 


14 

3 

.. 

608 

Obligation of contracts, not to be impaired. . 


1 

10 

1 

594 

insurrectionary to be held illegal and not assumed. 


14 

4 

. , 

608 

Offense, persons not to be put in jeopardy twice for same. 


5 



606 

against law of nations may be defined and punished. 


1 

8 

10 

592 

president may pardon for, against U. S. 


2 

2 

1 

596 

Office, judgment in impeachment shall extend only to removal. 


1 

3 

6 

590 

senators and representatives not to hold, etc. 


1 

6 

2 

591 

persons holding under U. S. not to accept presents, etc. 


1 

9 

7 

594 

“ “ “ “ “ be electors. 


2 

1 

2 

595 

when president removed from, how vacancy filled. 


2 

1 

5 

596 

oath of, of president. 


2 

1 

6 

596 

departmental, president may require opinion of head of each . 


2 

2 

1 

596 

judges to hold during good behavior. 


3 

1 

. . 

597 

Officers, house of representatives shall choose their. 


i 

2 

5 

589- 

senate shall choose their. 


i 

3 

5 

590 

of militia, appointed by each State. 


i 

8 

16 

592 

of U. S., president shall commission . 


2 

3 

. . 

596 

shall be removed on impeachment and conviction. 


2 

4 


596 

executive and judicial, to take oath to Constitution. 


6 

. , 

3 

605 

executive, etc., effects of denving rights to vote for. 


14 

2 


608 

effects of breach of oath as, by insurrection. 


14 

3 


608 

Opinion, president may require, of heads of departments. 


2 

2 

1 

596 

Order in which both houses concur to be presented to president. 


i 

i 

3 

591 

Original jurisdiction, when Supreme court to have. 


3 

2 

2 

597 

Originate, revenue bills, 6hall, in house of representatives. 


1 

7 

1 

591 

Overt act, no treason unless two witnesses testify to same. 


O 

O 

3 

- 1 

599 


P 


Papers, people to be secure against unreasonable searches. 


4 



606 

Pardons, president may grant. 


2 

2 

1 

596 

Patent rights, congress may grant. 


1 

8 

8 

591 

Peace, for a breach of, a senator or representative may be arrested _ 


1 

6 

1 

596 

no State in time of, to keep troops, etc. 


1 

10 

3 

594 

in time of, soldiers not to be quartered in anv house. 


3 



606 

Penalties, each house mav impose, to secure attendance of members .. 


1 

5 

1 

590 

Pennsylvania, her representation in first congress. 


1 

2 

3 

589 

Pensions, debt incurred in payment of not to be questioned. 


14 

4 

.. 

608 

People, house of representatives to be chosen by. 


1 

2 

1 

589 

when census of, to be taken. 


1 

2 

3 

589 

right of, to bear arms, etc. 


2 


,, 

606 

to be secure in persons, etc. 


4 



606 

rights retained by. 


9 



606 

powers reserved to the. 


10 



606 

Piracies, congress may define and punish, on the seas. 


1 

8 

10 

592 

Ports, regulation as to preference, clearing, etc. 


1 

9 

6 

594 


Posterity, Constitution established to secure blessings to. {Preamble.) 

























































INDEX TO CONSTITUTION OF UNITED STATES. 


619 


P 


Post-office and roads, congress may establish. 

Power to impeach, in house of representatives. 

to try impeachment, lies in the senate. 

executive, vested in president. 

to grant reprieves and pardons, lies in president. 

to make treaties, appointments, etc., lies in president 


judicial. (See Judicial Power.) . 

restrictions on its constructive extent.am. 

of congress to enforce amendments. (See Amendments.) 

Powers of congress to give effect to powers of government. 

when president unable to discharge, they devolve on vice president.. 

not delegated to United States, etc., reserved.am. 

Preference not to be given to one port over another. 

Prejudice, Constitution not to, claim of United States. 

Present from king, etc., not to be, without congress consent. 

Presentment of grand jury when crime is charged.am. 


President, when senate shall choose a temporary. 

bills passed by congress to be presented to. 

effect of, delaying to sign bill. 

orders, joint resolution, etc., to be presented to 
executive power vested in, his term of office ... 


how balloted for, and how votes counted.am. 

when elected by house of representatives.am. 

when vice president shall act as.am. 


who eligible for. 

when powers, etc., of, devolve on vice president 

compensation of, which is not to be altered- 

form of oath taken by. 

is commander-in-chief. 

power to make treaties, nominate, and appoint, 

till vacancies. 

to give information, etc., to congress. 

removed on conviction on impeachment. 


effect of denying right to vote for.am. 

Press, freedom of, not to be abridged.am. 

Prince, no present, etc., from to be accepted without consent. 

Principal officer of departments required to give opinion. 

Private property, to be compensated for, when taken.am. 

Privileged, when senators and representatives, from arrest. 


Privileges, citizens of each State entitled to, of each other State 

of citizens not to be abridged. 

Proceedings, each house may determine the rules of its. 


shall keep journal of its. 

credit, etc., to be given to, of other States. 

Process of law, no depriving of life, etc., without. 

compulsory, accused entitled to, to obtain witnesses. 

Prohibited powers, reserved to States and people. 

Promote the general welfare, Constitution established to. (Preamble.) 

Property of United States, congress shall legislate for. 

no person to be deprived of, without process of law. 

private, not to be taken without compensation. 

State not to deprive citizen of, without process of law. 

Proportion of representation to that of voting inhabitants. 

Prosecutions, criminal, rights of accused persons in. 

Protect the Constitution, president to take an oath to. 

United States shall, each State against invasion. 

Protection, no State shall deny equal protection of laws to. 

Public records, etc., of States to have full credit, etc.. • • • 

danger, no State to engage in war without consent, except in . 

debt, validity of, not to be questioned. 

ministers, president to receive. 

money, receipts and expenditures of, to be published . 


am. 

am. 

am. 


am. 

am. 

am. 

am. 

am. 


am. 


am. 


Art, 

1 

1 

1 

2 

2 

o 

3 

11 

1 

2 

10 

1 

4 

1 

5 
1 
1 
1 
1 

2 
12 
12 
12 

2 

o 

2 

2 

2 


2 

2 

2 

2 

14 

1 

1 

2 

5 

1 

4 

14 

1 

1 

4 

5 

6 
10 

4 

5 

5 

14 

14 

6 
2 
4 

14 

4 

1 

14 

2 

1 


Sec. 

8 

2 

3 

1 

2 

2 


8 

1 

9 

3 

9 

3 

7 

7 

7 

1 


1 

1 

1 

1 

2 

2 

2 

3 

4 
2 

9 

o 


6 

2 

1 

5 

5 

1 


3 


1 


1 

4 

1 

1 

10 

4 

3 

9 


Cl. P. 
7 591 

5 589 

6 590 

1 595 

1 596 

2 596 

1 596 

.. 607 

18 592 

5 5% 

.. 606 
5 594 

2 605 

7 594 

.. 606 
5 590 

2 591 

2 591 

3 591 

1 595 

1 607 

1 607 

1 607 

4 596 

5 596 

6 596 

6 596 

1 596 

2 596 

2 596 

.. 596 

.. 596 

.. 608 
.. 606 

7 594 

1 596 

.. 606 

1 590 

1 603 

.. 607 

2 590 

3 590 

.. 599 

.. 606 
.. 606 
.. 606 

2 605 

.. 606 
.. 606 
.. 607 

.. 608 
.. 606 

6 596 

.. 605 

.. 607 

.. 599 

3 594 

.. 608 
.. 596 

7 594 





























































620 


INDEX TO CONSTITUTION OF UNITED STATES. 




Art. 

Sec. 

Cl. 

P. 

safety may require suspension of habeas corpus . 


1 

0 

2 

593 

trust, no religious test required for any office of... 


6 


3 

605 

use, compensation for property taken for. 


5 

•• 

•• 

606 

Punishment, persons convicted by impeachment liable to. 


1 

o 

O 

6 

590 

congress to provide for, of counterfeiters. 


1 

8 

6 

591 

treason . . ,.,. 


3 

3 

2 

599 

for crime, servitude a. 


13 

1 

. . 

607 

Punishments, cruel, not to be inflicted. 


8 



606 

Q 

Qualifications of a representative. 


1 

2 

2 

589 

of a senator. 


1 

8 

3 

590 

to nffm.fi. 


6 


3 

605 

of electors of representatives.-. 


1 

2 

i 

589 

of its own members, each house shall judge of. 


1 

5 

i 

590 

of president. 


2 

1 

4 

596 

of vice president. 


12 

. • 

3 

607 

Quartered, soldiers not to be in house without owner’s consent. 


3 



606 

Question, yeas and nays on, when to be entered on journal. 


1 

5 

O 

t> 

590 

of adjournment, excepted from veto power. 


l 

7 

3 

591 

Questioned, members for speech in debate, not to be. 


1 

6 

1 

590 

validity of United States public debt not to be. 


14 

4 


608 

Quorum, what constitutes a, in each house. 


1 

5 

1 

590 

of house of representatives for the election of president. 

.am. 

12 


2 

607 

of senate for the election of vice president. 


12 


2 

607 


R 


Race, right to vote not to be abridged on account of . 


1 


608 

Ratification of nine States to establish Constitution . 



. . 

605 

Rebellion, a cause for suspension of habeas corpus .. 

. 1 

9 

2 

593 

denial of right to vote . 


2 


608 

who disqualified by participation in . 


o 

o 


608 

debt for suppression of, not to be questioned . 


4 


608 

debt incurred in aid of, not to be assumed. 


4 

,. 

608 

Receipts and expenditures, statement of, to be published. 

. 1 

9 

7 

594 

Recess of senate, president may fill vacancies during. 

o 

2 

3 

596 

Reconsidered, bills objected to by president to be. 

. i 

* 7 

2 

591 

joint resolution, etc., bv president to be . 

. i 

7 

3 

591 

Records of each State to have credit, etc., in each other State . 

. 4 

1 

1 

599 

Redress of grievances, right of people to assemble and petition for. .. 

- am. 1 



606 

Regulations of one State not to discharge labor due in another . 

. 4 

2 

3 

603 

congress may make, for territory and other U. S. property _ 

. 4 

o 

o 

2 

605 

Religion, congress not to establish or prohibit any . 




606 

Religious test, not to be required as a qualification for office . 



3 

605 

Representation, reduced, when right to vote is denied, etc . 


o 


608 

vacancies in, State executive to issue writs . 

. 1 

2 

4 

589 

Representative, qualifications of a . 


2 

2 

589 

Representatives, what persons who were in rebellion can not be . 


q 

o 


608 

how apportioned among the States . 

. 14 

2 


608 

no shall be appointed presidential elector. 

»> 

i 

2 

595 

congress shall consist of senate and. 


i 


589 

when members of house of, elected. 


o 

i 

589 

and direct taxes, how apportioned. 

. 1 

2 

3 

589 

allowed in first congress to the thirteen States. 

. 1 

2 

3 

589 

house of, shall choose speaker, etc. 


2 

5 

589 

have sole power of impeachment. 


2 

5 

589 

time, place, and manner of elections for. 


4 

1 

590 

house of, shall be judges of elections, etc. 

. 1 

5 

1 

590 

a majority of, constitutes a quorum. 


5 

1 

590 

house of make rules, punish and expel members. 


5 

2 

590 

shall keep and publish a journal. 


5 

3 

590 



























































INDEX TO CONSTITUTION OF UNITED STATES. 


R 

Art. 

adjournment of, when require senate’s consent. 1 

receiving compensation, be privileged from arrest, etc. 1 

revenue bills shall originate in house of. 1 

to take oath to support the Constitution. 6 

effects of, breach of official oath taken as.am. 14 

Reprieves, president may grant. 2 

Reprisal, congress may grant letters of. 1 

no State shall grant letters of. 1 

Republican form of government, the United States shall guarantee a. 4 

Reserved, powers, to the State or the people..am. 10 

Residence of fourteen years, required for president or vice president. 2 

Resolution, joint, to be presented to president. 1 

Retained, rights, by the people.am. 0 

Returns of its members, each house shall judge of. 1 

Revenue bills, to originate in house of representatives. 1 

powers of senate over. 1 

regulations to be without preference. 1 

Rhode Island, its representation in first congress. 1 

Right of people to assemble and petition, not to be abridged.am. 1 

bear arms not to be infringed.am. 2 

be secure, etc., not to be violated.am. 4 

Right, trial by jury.am. 7 

to vote, how basis of representation proportioned to.am. 14 

Rights to writings and discoveries to be secured. 1 

enumeration of, in Constitution not to disparage others.am. 9 

Rules of naturalization, to be uniform. 1 

Rules of proceedings, each house of congress may fix its. 1 

concerning captures, congress may make. 1 

for land and sea forces, congress may make. 1 

of common law', re-examination by, in United States courts.am. 7 

S 

Science, congress may promote by granting exclusive rights. 1 

Searches and seizures, right of people to be secure jrom.am. 4 

Seat of government, congress has exclusive legislation over. 1 

Seats of senators, terms at which vacated. 1 

Secrecy, congress not to publish what may require. 1 

Secure the blessings of liberty, Constitution established to. ( Preamble.) 

rights of people to be in their persons, etc.am. 4 

Securities of United States, punishing counterfeiters of. 1 

Security of a free State, a militia necessary to.am- 2 

Seizures, right of people to be secure against.am. 4 

Senate and house of representatives, congress to consist of. 1 

how composed. 1 

vice president to be president of. 1 

may choose its officers and temporary president. 

has sole power to try impeachments. 

judgment of, in impeachment, its effect. 1 

to judge of election returns of its own members. 1 

a majority to form a quorum. 1 

may compel attendance of absent members. f 

determine its rules, and punish or expel members. 1 

to keep and publish a journal.. 1 

not to adjourn over three days without consent. 

power of, over revenue bills... * 

power of, over treaties, nominations, and appointments. 2 

equal suffrage in, no State to be deprived of. •••••• ;j 

list of voters for president and vice president sent to president 

j .am. 12 

president of, to open certificates of electors of president, etc.am. 12 

to choose vice president, when and how. am> 12 


Sec. 

5 

6 


3 
2 
8 

10 

4 

1 

7 

5 
7 
7 
9 
2 


<>21 


Cl. P. 
4 590 

1 590 

1 591 

3 605 
.. 608 

1 596 

11 592 

1 594 

1 605 

.. 606 

4 596 

3 591 

.. 606 
1 590 

1 591 

1 591 

6 594 

3 589 

.. 606 
.. 606 
.. 606 
.. 606 
.. 608 
8 591 

.. 606 

4 591 

2 590 

11 592 

14 592 

606 


8 591 

.. 606 
17 592 

2 590 

3 590 

.. 606 
6 591 

.. 606 
.. 606 
.. 589 

1 589 

4 590 

5 590 

6 590 

6 590 

1 590 

1 590 

1 590 

2 590 

3 590 

4 590 

1 591 

2 596 

.. 605 

1 607 

1 607 

1 607 




























































622 


INDEX TO CONSTITUTION OF UNITED STATES. 


Senator, each to have one vote.... 1 

qualifications for. 1 

to what offices disqualified.. 1 

persons holding office under United States disqualified for. 1 

a, can not be a presidential elector. 2 

effects of breach of official oath taken as.am. 14 

who, having been in rebellion, may not be a.am. 14 

Senators, to be two from each State, chosen by the legislature. 1 

how divided after first election. 1 

vacancies filled temporarily.. 1 

time, place, and manner of electing. 1 

to receive compensation, be privileged from arrest, etc. 1 

to take oath to support the Constitution..... 6 

Service, persons bound to, included in representative numbers. 1 

of United States militia, congress to provide for governing. 1 

militia, the president their commander-in-chief. 2 

excepted from certain privileges, etc.am. 5 

Services, compensation for, to the president. 2 

compensation for, senator and representative. 1 

compensation for the judges. 3 

debt incurred for, against rebellion not to be questioned.am. 14 * 

Servitude, involuntary, prohibited in United States.am. 13 

previous condition of, not to abridge right to vote.am. 15 

Session, congress to be in every year.. 1 

rule for adjournment during, of congress. 1 

Ships of war, no State to keep, without consent of congress. 1 

Slavery, prohibited in United States.am. 13 

Slaves, three-fifths of, included in representative numbers. 1 

importation of, how long permitted. 1 

escaping to be delivered up. 4 

loss or emancipation of, not to be paid for....am. 14 

Soldiers, not to be quartered in houses without consent.am. 3 

South Carolina, her representation in the first congress. 1 

Speaker and other officers, each house shall elect. 1 

Speech in debate, members not to be questioned for. 1 

freedom of, not to be abridged.am. 1 

Standard, congress may fix, of weights and measures. 1 

State of the Union, president to inform congress respecting. 2 

each to have at least one representative in congress. . i 

representation of, when vacancy in, writs to be issued. 1 

each to have two senators. 1 

State senator, vacancies of, filled by temporary appointment. 1 

elections for senators and representatives of, how prescribed. 1 

no tax to be imposed on articles exported from. 1 

ports of one, not to have preference over those of another. l 

a, shall not enter into alliances, grant letters of marque, etc. 1 

what to make legal tender, pass no ex post facto law, etc. 1 

a, to make no law impairing contracts. 1 

to grant no title of nobility. 1 

not to lay duties on imports, etc., without consent. 1 

not to lay’duties on tonnage, keep troops or ships of war. 1 

not to make compacts or engage in war. 1 

each, to appoint electors of president and vice president. 2 

extent of judicial power over. 3 

when a party, Supreme court has original jurisdiction. 3 

trial to be in the, where crime committed.... 3 

each, to give credit to records, etc., of each other State. 4 

citizens of, entitled to privileges of those of other States. 4 

a fugitive from justice from any, to be given up. 4 

a fugitive from labor from any, to be given up,. 4 

U. S. to guarantee every, a republican form of government. 4 

protect from invasion and domestic violence. 4 


Sec 

3 

3 

6 

6 

1 

3 

3 

3 

3 

3 

4 
6 

2 

8 

2 

1 

6 

1 

4 

1 

1 

4 

5 
10 

1 

2 

9 

2 

4 

2 

2 

6 

8 

3 

2 

2 

3 

3 

4 
9 
9 

10 

10 

10 

10 

10 

10 

10 

1 

2 

2 

2 

1 

2 

2 

2 

4 

4 


Cl. . P. 

1 589 

3 590 

2 591 

2 591 

2 595 

.. 508 

.. 608 

1 589 

2 590 

2 590 

1 590 

1 590 

3 605 

3 589 

16 592 

1 596 

.. 606 
6 596 

1 590 

1 597 

.. 608 
.. 607 

.. 608 

2 590 

4 590 

3 594 

.. 607 

3 589 

1 593 

3 603 

.. 608 
.. 606 
3 589 

5 589 

1 590 

.. 606 
5 591 

1 596 

3 589 

4 589 

1 589 

2 590 

1 590 

5 594 

6 594 

1 594 

1 594 

1 594 

1 594 

2 594 

3 594 

3 594 

2 595 

1 597 

2 597 

3 598 

1 599 

1 603 

2 603 

3 603 

1 605 

1 605 
































































INDEX TO CONSTITUTION OF UNITED STATES. 


fi 23 


3 

Art. 

not to be deprived of equal suffrage in senate. 5 

judges in. bound by Constitution, etc., of United States. 6 

legislatures, members of, to take oath to Constitution. 6 

effect of breach of oath as.am. 14 

denying right to vote for.am. 14 

each, to have one vote when house elects the president.am. 12 

citizens of the U. S. are citizens of the, in which they reside.am. 14 

no, shall abridge privileges, etc., of citizens of the U. S.am. 14 

deprive of life, etc., without processof law.am. 14 

deny any person equal protection of laws.am. 14 

any male inhabitant of a, effect of denying vote to.am. 14 

who may not hold office under.am. 14 

executive or judicial officer of, effect of breach of oath as.am. 14 

no, to assume debt, etc., incurred in aid of insurrection.am. 14 

for loss of any slave.am. 14 

abridge right to vote on account of color, etc.am. 15 

States, to choose representatives in congress every two years. 1 

representatives and direct taxes, how apportioned among. 1 

what, entitled to representation in the first congress. 1 

congress may regulate commerce among. 1 

have the right to train and appoint officers of militia. 1 

president to receive emolument from none of the. 2 

# new, admitted, when consent of legislature required. 4 

constitutional amendments to be ratified by three-fourths of. 5 

ratification of nine, established this Constitution. 7 

powers not prohibited by, to U. S., or delegated, are reserved.am. 10 

United. (See United States.) 

Subjects, foreign, when judicial power extends to. 3 

does not extend to.U 

Suffrage, no State to be deprived of its, in the Senate. 5 

Suits, right to trial by jury in.am. 7 

what, United States judicial power not construed to extend to.. .am. 11 

Sundays excepted from ten days allowed president to return bill, etc. 1 

Supreme court, judicial power of United States in, and inferior courts. 3 

judges of, to hold office during good behavior. 3 

compensation of. 3 

when original and when appellate jurisdiction. 3 

congress to make regulations for. 3 

law of the land, what is. 6 

T 

Tax, no direct, to be laid, unless in proportion to census. 

a, might have been imposed up to 1808 on imported persons. 1 

no amendment before 1808, to affect first and fourth clause of the 9th 

section.*.’ 

not to be laid on exports from any State. 1 

Taxed, Indians not taxed excluded from representative numbers. 1 

Taxed, Indians not taxed excluded from representative numbers.am. 11 

Taxes, direct, how apportioned among the States. 

congress shall have power to lay and collect. 

Tender, no State to make anything but gold and silver a. 1 

Term of office of representative in congress, two years. 1 

senator, six years. 

president and vice president, four years. - 

citizenship of representative in congress, seven years. 1 

senator in congress, nine years. 1 

ten years, census to be taken every. 

years, person bound for included in representative numbers. 1 

Territories, congress shall have exclusive jurisdiction .. 

congress shall make needful laws respecting . ^ 

Test, no religious, required as a qualification for office. 6 


Sec. Cl. 


1 

3 

3 

3 

16 

6 

1 


8 

10 

2 

3 

1 


5 

3 

3 

1 

1 

1 

1 

1 

o 

3 

3 

3 

17 


P. 

605 

605 

605 

60S 

60S 

607 

607 

607 

607 

607 

608 
608 
608 
608 
608 
608 
589 
589 
589 

591 

592 
5% 
605 
605 

605 

606 

597 

607 

605 

606 
607 
591 
597 
597 
597 
597 
597 
605 


594 

593 

605 

594 
589 
608 
589 

591 

594 
589 
589 

595 

589 

590 
589 
589 

592 
605 
605 



























































624 


INDEX TO CONSTITUTION OF UNITED STATES. 


T 

Art. Sec. Cl. P_ 


Testimony of two witnesses required to convict of treason. 


3 

3 

1 

599 

Time of choosing electors may be determined by congress. 

Title of nobility, not conferred by United States, or accepted without 

con- 

2 

1 

3 

596. 

sent. 


i 

9 

8 

594 

no State shall grant. 


i 

10 

1 

594 

Tonnage, no State to lay duty on without consent. . 


i 

10 

3 

594 

Training of militia, authority for, reserved to the States. 

Tranquillity, Constitution established to secure domestic. ( Preamble .) 


i 

8 

16 

592 

Treason, a senator or representative may be arrested for. 


i 

6 

1 

590 

civil officers to be removed on conviction of. 


2 

4 

1 

596 

against United States, in what it consists. 


3 

0 

o 

1 

599' 

congress has power to punish. 


3 

o 

2 

590 

fugitives charged with, to be delivered up. 


4 

2 

2 

603: 

Treasury, senators and representatives to be paid out of. 


1 

6 

i 

590 

money drawn from, only on legal appropriation. 


1 

9 

7 

594 

duties, etc., laid by States on imports, etc., to go to United States_ 

1 

10 

2 

594 

Treaties, president to make, with advice, etc., of senate. 


2 

2 

2 

596 

judicial power to extend to cases under.. 


3 

2 

1 

3U7 

are supreme law of the land. 


6 


2 

605- 

Treaty, no State shall make. . 


• 1 

10 

1 

594 

Trial, persons convicted on impeachment, punished by law . 


1 

3 

7 

590 

accused has a right to a speedv and public. 

.am. 

6 

. . 


606 

except impeachment, to be bv jury. 


3 

2 


598 

to be in the State where the crime was committed. 


3 

2 

o 

o 

598 

by jury in suits by common law. 

.am. 

7 


. . 

606 

Tribunals, congress may constitute inferior. 


i 

8 

9 

591 

Troops, no State shall keep, without consent of congress. 


i 

10 

3 

594 

Two-thirds of senate must concur to convict on impeachment. 


i 

3 

6 

590 

each house mav expel a member. 


i 

5 

2 

590 

both houses may pass a bill over president’s veto. 


i 

7 

2 

591 

both houses may pass a resolution, etc., over president’s veto... 


i 

7 

3 

591 

senate with the president, make treaties. 


2 

2 

2 

596 

both houses mav propose constitutional amendments. 

of all the State legislatures may call a convention to propose consti- 

5 


•• 

605- 

tutional amendments. 

representatives from, of the States must be in the house to elect a 

5 


•• 

606 

president. 

.am. 

12 

, . 

. . 

60T 

the senate must attend to elect a vice president. 

.am. 

12 


1 

607 

vote of congress can remove disability. 

.am. 

14 

3 


608 


U 


Uniform, all duties, imports and excises must be. 

1 

8 

1 

591 

rules for naturalization, and bankruptcy law, must be. 

1 

8 

4 

591 

Union, the Constitution established to form a more perfect ( Preamble.) 





State of, president to give information, etc., respecting the. 

2 

3 

1 

.589- 

new State may be admitted into the. 

4 

3 

1 

589 

United States, the Constitution ordained of the (Preamble.) 





congress of legislative powers vested in. 

1 

1 

1 

581* 

to provide for the defense and welfare of. 

1 

8 

1 

591 

counterfeiting securities and coin of, to be punished. 

1 

8 

6 

591 

establishment of seat of government of. 

1 

8 

17 

592 

congress to make laws for government of. 

1 

8 

18 

592 

no title of nobility shall be granted by. 

1 

9 

8 

594 

consent of, necessary for a State to lay imposts, etc. 

1 

10 

2 

594 

executive power of, vested in president. 

2 

1 

1 

596 

president of (Sec President.) . 





judicial power of ( See Judicial—Judge,) . 





claims of, not to be prejudiced. 

4 

3 

2 

606 

shall guarantee every State a republican form of government. 

4 

4 


605 

former debts of, valid. 

6 


2 

606 

no religious test required for office under. 

6 


3 

606 

powers not delegated to, or prohibited, are reserved. am 

10 



606 























































INDEX TO CONSTITUTION OF UNITED STATES. 


slavery shall not exist iu. . 13 

persons born or naturalized in. are citizens of the.am. 14 

privileges of, etc., of citizens of, no State shall abridge.am. 14 

citizens of, effect of denying vote to.am. 14 

effect of breach of oath taken as an officer of.am. 14 

validity of debt of, incurred in suppressing rebellion, not to be ques¬ 
tioned.am. 14 

not to pay any debt incurred in aid of insurrection.am. 14 

claim for loss or emancipation of slaves.am. 14 

right of citizens of, to vote not to be denied.am. 15 

V 

Vacancies in State representation, writs to be issued to lill. 1 

in senate, how filled. . 1 

what, the president may temporarily fill. 2 

Validity of debts of United States not to be questioned. am. 14 

Value, congress to regulate, of coin. % . 1 

in controversy, when over $ 20 , the trial to be by jury.am. 7 

Vessels from or to one State not obliged to clear, etc., in another. 1 

Vest, congress may vest power to make certain appointments in president, 

or, etc. 2 

Veto power of president. (See President.) . 1 

Vice president, his qualifications.am. 12 

his term of office. 2 

election of, when senate shall choose.am. 12 

list of votes for, sent to president of the senate.am. 12 

president of senate to open certificates of electors for.am. 12 

when he shall act as president.am. 12 

duties of president shall devolve on. 2 

in absence of, senate to choose a president pro tern . 1 

has no vote in senate, except in case of tie. 1 

effect of denying right to vote for. am. 14 

Violated, right of people to be secure, etc., shall not be.am. 4 

Virginia, her representation in first congress. 1 

Void, debt incurred in aid of insurrection is.am. 14 

Vote, each senator shall have one. 1 

vice president has only a casting vote. 1 

joint, every, to be presented to president. 1 

in congress, when it must be by yeas and nays. 1 

of presidential electors, how given and transmitted.am. 12 

taken by States, in choosing president by house of representatives, am. 12 

when right to abridged, basis of representation reduced.am. 14 

not to be denied, on account of color, etc.am. 15 

congress may by a two-thirds, remove disability.am. 14 


W 

War, congress may declare. 

no State to make, without consent of congress. 

levying against United States, is treason. 

in time of, how soldiers quartered in citizen’s house. 

in time of, when jury presentment dispensed with. 

Warrants may be issued only on probable cause, etc. 

Weights and measures, congress has power to fix standard of— 

Welfare, congress has power to support the general. 

Witness against himself, no person shall be compelled to be. 

Witnesses, persons criminally accused, to be confronted with ... 

persons criminally accused, to have process for. 

two, necessary for conviction on charge of treason. 

Writings, exclusive right to, may be secured. 

Y 

Yeas and nays of either house, when must be entered on journal 
when vote must be taken by. 


. 1 

. 1 

. 3 

..am. 3 

..am. 5 

..am. 4 

. 1 

. 1 

..am. 5 

..am. 6 

..am. 6 

. 3 

. 1 


1 

1 


Sec. Cl. P. 

1 ..607 

1 ..607 

1 ..607 

2 ..60S 

3 ..60S 


4 ..60S 

4 .. 608 

4 ..60S 

1 ..608 


2 4 589 

3 2 590 

2 3 596 

4 .. 608 

8 5 091 

.. 606 

9 6 594 

2 2 596 

7 2 591 

.. 3 607 

1 1 595 

2 607 

1 607 

1 607 

1 607 

1 5 596 

3 5 590 

3 4 590 

2 .. 608 

.. 606 

2 3 589 

4 ..608 

3 1 589 

3 4 590 

7 3 591 

7 2 591 

1 607 

1 607 

2 ..608 

1 ..608 

3 .. 608 


8 11 592 

10 3 594 

3 1 599 

.. 606 
.. 606 
.. 606 
8 5 591 

8 1 591 

.. 606 
.. 606 
.. 606 
3 1 599 

8 8 591 


5 3 590 

7 2 591 


10 


























































626 


DECLARATION OF INDEPENDENCE. ' 


DECLARATION OF INDEPENDENCE. 


[Unanimously Passed by the Congress of the Thirteen United States of 

America, July 4, 1776.] 


When, in the course of human events, it becomes necessary for one people 
to dissolve the political bands which have connected them with another, and to 
assume among the powers of the earth the separate and equal station to which 
the laws of nature and of nature’s God entitle them, a decent respect to the 
opinions of mankind requires that they should declare the causes which impel 
them to the separation. 

We hold these truths to be self-evident, that all men are created equal; that 
they are endowed by their Creator with certain inalienable rights; that among 
these are life, liberty, and the pursuit of happiness. That to secure these rights, 
governments are instituted among men, deriving their just powers from the con¬ 
sent of the governed; and that whenever any form of government becomes 
destructive of these ends, it is the right of the people to alter or to abolish it, 
and to institute a new government, laying its foundation on such principles, and 
organizing its powers in such form as to them shall seem most likely to effect 
their safety and happiness. Prudence, indeed, will dictate that governments 
long established should not be changed for light and transient causes; and accord¬ 
ingly, all experience hath shown that mankind are more disposed to suffer, 
while evils are sufferable, than to right themselves by abolishing the forms to 
which they are accustomed. But when a long train of abuses and usurpations, 
pursuing invariably the same object, evinces a design to reduce them under abso¬ 
lute despotism, it is their right, it is their duty to throw off such government, 
and to provide new guards for their future security. Such has been the patient 
sufferance of these colonies, and such is now the necessity which constrains 
them to alter their former systems of government. The history of the present 
king of Great Britain is a history of repeated injuries and usurpations, all hav¬ 
ing, in direct object, the establishment of an absolute tyranny over these States. 
To prove this, let facts be submitted to a candid world: 

He has refused his assent to laws the most wholesome and necessary for the 
public good. 

He has forbidden his governors to pass laws of immediate and pressing 
importance, unless suspended in their operation till his assent should be obtained; 
and when so suspended, he has utterly neglected to attend to them. He has 
refused to pass other laws for the accommodation of large districts of people, 
unless those people would relinquish the right of representation in the legisla¬ 
ture—a right inestimable to them, and formidable to tyrants only. 

He has called together legislative bodies at places unusual, uncomfortable, 
and distant from the repository of their public records, for the sole purpose of 
fatiguing them into compliance with his measures. 

He has dissolved representative houses repeatedly, for opposing with manly 
firmness his invasions on the rights of the people. 

He has refused, for a long time after such dissolutions, to cause others to be 
elected; whereby the legislative powers, incapable of annihilation, have returned 
to the people at large, for their exercise; the State remaining, in the meantime, 
exposed to all the dangers of invasion from without and convulsions within. 

He has endeavored to prevent the population of these States; for that pur¬ 
pose obstructing the laws for the naturalization of foreigners; refusing to pass 
others to encourage their migration hither, and raising the conditions of new 
appropriations of land. 

He has obstructed the administration of justice, by refusing his assent to 
laws for establishing judiciary powers. 




DECLARATION OF INDEPENDENCE. 


627 


officS e a n!fth!?oli Ud f eS de P endent °? ^8 will alone, for the tenure of their 
omces, and the amount and payment of their salaries. 

to har™“ 1 f mu ] titu . de ^ new offices, and sent hither swarms of officers 
to narrass our people and eat out their substance. 

sent of oul le^Ses* US ’ *** ° f PeaCe ’ standin ^ armie8 > without the «>n- 
civil^ower affeCted t0 render the militai T independent of, and superior to the 

r™«Mti C ! m ]' i ' 1<!d f V ‘ th ? tl ! ers . t° object us to a jurisdiction foreign to our 

p?etended lep ? 8“ation“ knOW e<i8ed by ° Ur a "' 8; giving his assent t0 their acts of 
For quartering large bodies of troops among us; 
i • I 0 ! P rot f cti Pg them, by a mock trial, from punishment for anv murders 
which they should commit on the inhabitants of these States; 

For cutting off our trade with all parts of the world; 

ror imposing taxes on us without our consent; 

hor depriving us, in many cases, of the benefit of trial by jury; 

hor transporting us beyond seas, to be tried for pretended offenses; 

. ,? r . 8-oolishing the free system of English laws in a neighboring province, 
establishing therein an arbitrary government, and enlarging its boundaries, so 
as to render it at once an example and fit instrument for introducing the same 
absolute rule into these colonies; 

For taking away our charters, abolishing our most valuable laws, and alter¬ 
ing fundamentally the forms of our governments; 

For suspending our own legislatures, and declaring themselves invested with 
power to legislate for us in all cases whatsoever. 

He has abdicated government here, by declaring us out of his protection, 
and waging war against us. 

He has plundered our seas, ravaged ourcoasts, burnt our towns, and destroyed 
the lives of our people. 

He is at this time transporting large armies of foreign mercenaries, to com¬ 
plete the works of death, desolation, and tyranny already begun with circum¬ 
stances of cruelty and perfidy scarcely parallel in the most barbarous ages, and 
totally unworthy the head of a civilized nation. 

lie has constrained our fellow citizens, taken captive on the high seas, to 
bear arms against their country, to become the executioners of their friends and 
brethren, or to fall themselves by their hands. 

He has excited domestic insurrections among us, and has endeavored to 
bring on the inhabitants of our frontier the merciless Indian savages, whose 
known rule of warfare is an undistinguished destruction of all ages, sexes and 
conditions. 


In every stage of these oppressions, we have petitioned for redress in the 
most humble terms. Our repeated petitions have been answered only by 
repeated injury. A prince whose character is thus marked by every act which 
may define a tyrant, is unfit to be the ruler of a free people. 

Nor have we been wanting in attentions to our British brethren. We have 
warned them, from time to time, of attempts by their legislature to extend an 
unwarrantable jurisdiction over us. We have reminded them of the circum¬ 
stances of our emigration and settlement here. We have appealed to their 
native justice and magnanimity, and we have conjured them, by the ties of our 
common kindred, to disavow these usurpations, which would inevitably inter¬ 
rupt our connection and correspondence. They too have been deaf to the voice 
of justice and consanguinity. We must, therefore, acquiesce in the necessity 
which denounces our separation, and hold them, as we hold the rest of mankind— 
enemies in war; in peace, friends. 

We, therefore, the representatives of the United States of America, in gen¬ 
eral congress assembled, appealing to the Supreme Judge of the world for the 
rectitude of our intentions, do, in the name and by the authority of the good people 
of these colonies, solemnly publish and declare, that these united colonies are, 
and of right ought to be, free and independent States; that they are absolved 
from all allegiance to the British crown, and that all political connection between 
them and the State of Great Britain, is and ought to be, totally dissolved; and 
that, as free and independent States, they have full power to levy war, conclude 
peace, contract alliances, establish commerce, and to do all other acts and things 


628 


DECLARATION OF INDEPENDENCE. 


which independent States may of right do. And for the support of this declara¬ 
tion, with a firm reliance on the protection of Divine Providence, we mutually 
pledge to each other our lives, our fortunes, and our sacred honor. 

JOHN HANCOCK. 


New Hampshire. 
Josiah Bartlett, 

William Whipple, 
Matthew Thornton. 

Massachusetts Bay. 
Samuel Adams, 

John Adams, 

Robert Treat Paine, 
Elbridge Gerry. 

Rhode Island , etc. 
Stephen Hopkins, 
AVilliam Ellery. 

Connecticut. 
Roger Sherman, 

Samuel Huntington, 
AVilliam Williams, 

Oliver AVolcott. 

New York. 
William Floyd, 

Philip Livingston, 

Francis Lewis, 

Lewis Morris. 

New Jersey. 
Richard Stockton, 

John Witherspoon, 
Francis Hopkinson, 

John Hart, 

Abraham Clark. 

Pennsylvania. 
Robert Morris, 

Benjamin Rush, 
Benjamin Franklin, 

John Morton, 

George Clymer, 


James Smith, 

George Taylor, 

James AVilson, 

George Ross. 

Delaware. 
Ciesar Rodney, 

George Read, 

Thomas McKean. 

Maryland. 
Samuel Chase, 

William Paca, 

Thomas Stone, 

Chas Carrol, of Carrol ton. 

Virginia. 
George AVythe, 

Richard Henry Lee, 
Thomas Jefferson, 
Benjamin Harrison, 
Thomas Nelson, Jr., 
Francis Lightfoot Lee, 
Carter Braxton. 

North Carolina. 
AVilliam Hooper, 

Joseph Hewes, 

John Penn. 

South Carolina. 
Edward Rutledge, 

Thomas Heyward, Jr., 
Thomas Lynch, Jr., 
Arthur Middleton. 

Georgia. 

Button G winnett, 

Lyman Hall, 

George AValton. 


CL 


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